The Supreme Court has referred Section 377 of the Indian Penal Code to a larger bench on Monday. This decision comes after 5 petitioners from the LGBT community filed a petition against the law stating that they live under constant fear of police, as reported to The Indian Express.
The apex court stated that an individual must have control over the choices they make, despite their sexual orientation. The court also observed that, “A section of people or individuals who exercise their choice should never remain in a state of fear.”
Senior advocate Arvind Datar, who appeared on behalf of the petitioners stated the importance of Article 21 for an individual. He further added that the petition may be referred immediately because the specific section directly impacts the life and fundamental rights of his clients. Datar reiterated that the, “Right to choose my partner is part of my fundamental right to privacy,” according to The Hindu.
With the Supreme Court passing the Right to Privacy Judgement in August this year, there is still a hope for the section to be quashed in near future. Also because the bench stated in its judgment said that, “Sexual orientation is an essential attribute of privacy.”
The colonial era legislation criminalizes sexual relationship between members of LGBT community since the relationship according to the law is ‘unnatural.’ With a new hearing, the earlier petition between Naz Foundation and Suresh Kumar Kaushal filed in 2014 will be revisited before a bench.
NEW DELHI: Struggle for LGBT rights continue as the Supreme Court (SC) has referred the section 377 curative petition to a five-judge constitution bench for further examination. Launching the final leg of the legal battle that lasted fifteen years, the SC will now decide the fate of millions of Indians. Section 377 states “intercourse against the order of nature”, thus, criminalizing homosexual acts in the process.
Eight curative petitions that were filed by gay rights activists and NGO Naz foundation was clubbed together challenging the apex court’s December 11, 2013 judgement of upholding validity of section 377 of IPC and the January 2014 order, in which the court had dismissed a bunch of review petitions.
Senior counsel Kapil Sibal said the issue involved constitutional importance and that it must be heard by five-judge bench. Chief Justice TS Thakur headed the bench along with two other senior justices, Anil R Dave and Jagdish Singh Kehar and referred to the curative petition to a five-judge bench.
Giving an indication that the SC will consider the constitutionality of Section 377 with new eyes, Chief Justice Thakur told senior advocate Anand Grover that the new Bench will conduct a fair hearing of the arguments placed for the dignity and protection of LGBT the community.
Lok Sabha MP Shashi Tharoor’s bid to introduce a private member’s bill in the parliament to decriminalise gay sex has failed in the Lok Sabha today.
Tharoor tweeted on Friday: “Intro of Pvt.Member’s Bill2decriminalize consensual sex btwn consenting adults defeated in LS 71-24. Surprising to see such intolerance.”
Through this bill, Tharoor wanted to revise Section 377 of the Indian Penal Code, saying it “violates the fundamental rights” of the homosexual population. Estimates point out that 10% of the population is non-heterosexual, constituting bisexual, lesbian, gay, and transgender groups. Going by the 153-year-old colonial-era law, a same-sex relationship is an “unnatural offence”, along with a punishment by a 10-year jail term.
The Apex Court had put the onus on the Indian government to give a verdict on the issue, stating it could bring a legislation to undermine the relevant section of the IPC. According to activists, police authorities often misuse the law to harass homosexuals.
Shashi Tharoor tweeted, “will try again in the future” to amend the law.