Will the Supreme Court of India decriminalize homosexuality? This question, which will have a bearing on rights of LGBTs (Lesbian, Gay, Bisexual and Transgenders)  in the country will be decided by a constitution bench of the Supreme Court on Thursday.

A five judge bench, comprising Chief Justice of India, Dipak Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra had concluded hearing in this contentious issue and reserved its verdict 49 days back.

This judgment is the first in the series of the ten important judgments that the Chief Justice of India will be a part of before his retirement on October 2.

Read- Gay and hopeful: What is at stake in fight against gay sex law Section 377

The Supreme Court had in 2016 admitted a petition filed by five members of LGBT community – Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra, challenging the constitutionality of the colonial-era law section 377 of the Indian Penal Code.

Subsequently, another clutch of petitions were filed by more members of the LGBT community.

Section 377 of the Indian Penal Code punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment, though formal prosecution is rare. But activists allege the law forces LGBT people to live in fear and face blackmail, intimidation and pervasive discrimination.

In their petitions, they asserted that members of the LGBT community lived in fear because of Section 377 and ignored harassment and problems arising out of the law.

In July 2009, the Delhi high court had read down section 377 of the Indian Penal Code that criminalised sex between consenting gay adults. However, in December 2013, the Supreme Court reversed the 2009 verdict and re-criminalised gay sex.

The issue of section 377 came under the spotlight last year with the judgment in the Right to Privacy mater, where judgment said just because “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” is not a sustainable basis to deny the right to privacy.

Ruling on whether citizens have a right to privacy or not, the court touched on the rights of LGBT vis-a-vis privacy and said, “Sexual orientation is an essential attribute of privacy. And we disagree with the manner in which Koushal (LGBT rights judgment) has dealt with the privacy – dignity-based claims of LGBT persons in this aspect. “

The Narendra Modi government has chosen not to take a stand in the matter. It has left it to the court’s wisdom but asked the court to clarify that the right to choose a partner should not extend to “perversions like incest.”

During the course of hearing of the matter, the constitution bench rejected the idea to let Parliament take a decision on repealing Section 377. It had observed that a government in majority, resting on votes, will not touch an offending law and therefore Constitution empowers the court to strike it down the moment it is found to be unconstitutional.

First Published: Sep 06, 2018 07:02 IST

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