LGBT Case: Supreme Court to Review Constitutional Validity of Section 377

09 January, 2018, 02:08 | Author: Roderick Gutierrez
  • Supreme Court to review Section 377 which criminalises gay sex

"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. The petition has also alleged an issue bias by the court against the LGBT community through its references such as "the so-called rights of LGBT persons" in its 2013 judgment.

The Supreme Court on Monday chose to review the contentious Section 377 of the Indian Penal Code, five years after its two-judge bench set aside a Delhi High Court judgement decriminalising homosexuality.

In 2013, a two-judge bench of Justices G.S. Singhvi and S.J. Mukhopadaya had ruled that Section 377 of the IPC was illegal, overturning a judgment of a three-judge bench of the Delhi high court which had decriminalised gay sex. But, with the apex court deciding to revisit its decision on Monday, there is a renewed hope among the members of the LGBT community.

Section 377 of IPC, came into force in 1862 - defines unnatural offences.

The U.S. Supreme Court declined Monday to take up a legal battle over a MS law that allows state employees and private businesses to deny services to LGBT people based on religious objections.


The controversial Section 377 bans the sexual activities that are "against the order of nature".

The Supreme Court on Monday agreed to reconsider its 2013 decision that criminalises consensual sex between same sex adults and referred the matter to a larger bench, a victory for equal rights campaigners. The petitioners had told the court they were living in constant fear of police action due to their sexual orientation. "We are asking for constitutional rights given to any citizen in the country", said Koninika Roy from the Humsafar Trust that works with LGBT community. The law lists numerous actions that people with these beliefs can take without facing legal action. 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.

He said the law's only goal was guaranteeing "that Mississippians don't live in fear of losing their careers or their businesses simply for affirming marriage as a husband-wife union".

In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a "third gender" along with male and female. It also asked to include them in the OBC quota. "We think it appropriate to send this issue to a larger bench", they said.

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