SC refers plea regarding Section 377 to Constituition Bench

Trevor Jackson
January 9, 2018

"The top court's judgment upholding validity of Section 377 appears to hurt the sexual preferences of individuals", said the three-judge bench of Chief Justice Dipak Misra, Justices A M Khanwilkar and D Y Chandrachud. In 2014, the Supreme Court refused to review the decision while hearing multiple pleas on the matter.

In the 2013 judgment, the two judge bench of justices GS Singhvi and SJ Mukhopadhaya had argued that in 150 years, less than 200 persons had been prosecuted under Article 377.

In 2009, the High Court of Delhi ruled against the law, but in 2013, the Supreme Court set aside that ruling, keeping the law in place. While prosecutions under section 377 have been rare, activists have said that the police used the law to harass and intimidate members of the LGBT community.

The Supreme Court also mentioned to a Constitutional bench the petition seeking to decriminalize consensual sex between LGBTQ adults. "The time has come that either the courts must read down Section 377 or the government should repeal it from the IPC".

Section 377, modelled on a 16th-century British law, bans "carnal intercourse against the order of nature with any man, woman or animal", and is punishable by life imprisonment. I would like to bring it to the fore that the American psychiatric association, the Indian psychiatric association and the world health organisation have de-listed homosexuality from the list of mental disorders and if my nation respects people for who they are, the nation also needs to remember that my sexuality is an integral part of who I am.

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The US Supreme Court on Monday ended the first legal challenge to a Republican-backed MS law that permits businesses and government employees to refuse to serve lesbian, gay, bisexual and transgender people due to their religious beliefs.

Signed into law in 2016 in response to the Supreme Court's gay marriage ruling, it allows county clerks to avoid issuing marriage licenses to gay and lesbian couples and protects businesses from lawsuits if they refuse to serve LGBT customers.

The Mississippi law, by contrast, gives priority to religious rights. A promising sign, the Court also asked the government to respond to a petition from five LGBTQ people who said they live in fear of police due to their identities. "The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution", the SC held. The petitioners said they live in constant fear of police action due to their sexual preferences.

What's the Supreme Court verdict on transgenders? "We think it appropriate to send this issue to a larger bench", they said.

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