5 years after it’s initial verdict, a three-judge bench of The Supreme Court of India has decided to review the criminalisation of consensual homosexual sex under Section 377 of the Indian Penal Code (IPC). The said law was created by the British during the colonial era and holds that only penile-vaginal sex was not “against the order of nature”. Under today’s order, the court has decided to refer the matter to a larger bench that will re-evaluate the constitutional validity of Section 377.
In 2013, the apex court reversed the Delhi High Court’s 2009 judgement, which held that criminalising gay sex, “does not suffer from the vice of unconstitutionality”. Under the judgement, the court gave the amendment and repealing powers to the legislature, as it deemed fit. Last year, Congress M.P. Shashi Tharoor introduced the Indian Penal Code (Amendment) Bill seeking changes in Section 377 of IPC but the bill failed to gain a majority in the Lok Sabha.
The recent order comes in response to a writ petition hearing filed by five members of the lesbian, gay, bisexual, transgender (LGBT) community. In the order, the court said, “Determination of the order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly, change takes place.” The court also noted that while choice can’t be allowed to cross the boundaries of law, “The confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21, the right to life and liberty.”
The “section of people who exercise their choice should never remain in a state of fear”, the Supreme Court said in reference to the five petitioners and the LGBT community at large. While throughout the existence of the law, not more than 200 arrests have been made, the police use it to harass and threaten the members of the community.
The celebrated order provides hope and hinges in favour of decriminalisation of consensual gay sex. Akkai, an LGBT activist said “we need to welcome it. We still have hope from Indian judiciary. We are living in the 21st century. All politicians & political parties must break their silence & support individual’s sexuality”
Moreover, the recent judgement on the fundamental right to privacy was also taken into account by the court. The judgement was in favour of respecting the freedom of the individual to their sexual orientation. While the judgement was welcomed by the LGBT community, Gautam Bhan, an LGBT activist, entailed that, “We could have gone to court on privacy grounds. But we didn’t because that is not acceptable. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality.”
Feature Image Credits: Daily Mail