Section 377: Supreme Court to begin hearing petitions against criminalising homosexuality today
On Tuesday, a newly re-constituted five-judge Supreme Court constitution bench will commence hearing petitions on repealing Section 377 of the Indian Penal Code (IPC) which criminalises sexual relationship between persons of same sex.
On Tuesday, a newly re-constituted five-judge Supreme Court constitution bench will commence hearing petitions on repealing Section 377 of the Indian Penal Code (IPC) which criminalises "carnal intercourse against the order of nature" and thereby sexual relationship between persons of same sex.
The new five-judge bench will be headed by Chief Justice Dipak Misra and would comprise Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud, and Justice Indu Malhotra. The new members on the bench are Justice Nariman and Justice Malhotra who replaced Justice AK Sikri and Justice Ashok Bhushan.
Section 377, refers to "unnatural sex" and says "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine".
After the apex court had set aside the Delhi High Court's 2009 judgment — decriminalising sex between consenting adults of the same sex by holding as "illegal" Section 377 of IPC — review petitions were filed, and on their dismissal, curative petitions were filed by the affected parties for the re-examination of the original verdict.
During the pendency of the curative petitions, the plea was made that an open court hearing should be granted and after the apex court agreed to it, several fresh writ petitions were filed seeking to decriminalise Section 377.
The petitions against Section 377, an archaic law from 1860, have been filed by 32 individuals, according to India Today, including celebrities, IITians and LGBT activists such as Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur, media person Sunil Mehra, hotelier Keshav Suri, the Naz Foundation and others.
Naz Foundation was the first one to file a petition against Section 377 in December 2001 in the Delhi High Court. In its verdict on 2 July, 2009, the court decriminalised homosexuality and said that no adult would be prosecuted for indulging in consensual sex in private with another adult irrespective of the gender. However, the Supreme Court overturned the Delhi High Court verdict in the Suresh Kumar Koushal versus Naz Foundation and others case in 2013.
The new petitions will now be challenging the apex court's verdict in 2013. The petitioners argue that Section 377 destroys an individual's choice and sexual orientation, and cannot be seen as a reasonable restriction under the law. However, LGBT activists and members of the community found the Supreme Court's verdict categorising sexual orientation as a fundamental right under Right to Privacy a catalyst of change.
Homosexuality is not a disorder, says Indian Psychiatric Society
Ahead of the crucial hearing, the Indian Psychiatric Society declared that "homosexuality is not a psychiatric disorder". In a statement published online, the group said that homosexuality is a normal variant of human sexuality, like heterosexuality and bisexuality. "There is no scientific evidence that sexual orientation can be altered by any treatment and that such attempts may, in fact, lead to low self-esteem and stigmatisation of the person," read the statement.
The association further extended its support for decriminalising homosexuality.
With inputs from PTI
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