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Section 377: The legal battle reopens in the Supreme Court

The argumental battle on the validity of the Section 377 of the Penal Code has been long and tedious.  A cheer for the warriors fighting for the rights of India’s LGBTQ community. Today the Supreme Court commenced its proceeding upon a petition challenging section 377. The constitutional bench comprising of Chief Justice Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, will hear the matter.

The struggle was perked up with the NGO, Naz Foundation in 2001 filing a Public Interest Litigation (PIL) before the Delhi High Court, challenging the constitutional validity of Section 377, which criminalises sexual activities which are “against the order of nature”, and includes within its purview even consensual sexual acts between adults in private.

In July 2009, the Delhi High Court, in Naz Foundation v. Govt. of NCT of Delhi, decriminalised consensual same-sex sexual relations between adults, opining that the provision “grossly violates [homosexual individuals’] right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual acts between adults in private.” The NGO had contended that the provision, to the extent that it penalises sexual acts in private between consenting adults, violates the India Constitution, specifically, Articles 14), 15, 19(1)(a)-(d).

However in 2013, the Supreme Court in Suresh Kumar Koushal’s case upheld the constitutional validity of section 377 and reversed the Delhi High Court judgment.

In January this year, a bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, referred the petitions filed by a few LGBT citizens, to a larger bench, saying social morality changes from age to age and “what is natural to one may not be natural to the other”. 

While referring the matter to the Constitution Bench, the bench headed by the CJI noted that Section 377 IPC, in so far as it destroys individual choice and sexual orientation, cannot be regarded as a reasonable restriction on the exercise of one’s fundamental rights. It also observed that the individual autonomy and individual orientation cannot be atrophied unless the restriction orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. 

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