Published: Thu, September 06, 2018

Section 377 verdict by Supreme Court today: 5 key things to know

Section 377 verdict by Supreme Court today: 5 key things to know

A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on July 17 after hearing various stakeholders, including gay rights activists. "Prejudices are deeply ingrained in society", Justice Dipak Misra said. Justice Nariman had wondered whether LGBT itself was an "order of nature".

In the hearing, the government chose to remain neutral on the legality of Section 377, leaving the decision entirely to the wisdom of the Supreme Court.

"Senior Counsel Anand Grover had referred to section 375, IPC to attack the impugned provision- "(Penetration into) Mouth, urethra or anus which was earlier considered to fall under section 377, now attracts section 375, if without consent...the legislature does not see it as being against the "order of nature"...also, there is no intelligible differentia between whether the act is performed homosexually or heterosexually..." The Five Judge Bench has declared Section 377 IPC unconstitutional, insofar as it criminalises consensual sexual acts of adults in private. He also discussed Yogyakarta principles and said that they will directly apply here.

Section 377 verdict LATEST updates: Supreme Court has given some very strong indication that they will decriminalise Section 377.

The legal battle against the archaic Section 377 first started in 1994 when a the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist group, filed a public interest petition in the Delhi High Court challenging the constitutional validity of Section 377.

In a step that took the country back several decades, if not centuries, the SC in 2013 overturned the Delhi HC judgement.

Additional solicitor general of India, Tushar Mehta, had also countered arguments in favour of decriminalizing homosexuality, stating that "it might lead to a possible challenge to prohibition against incestuous relations under personal laws". This includes the right to dignity, privacy and autonomy. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right and sexual orientation, the court said, is "an essential component of identity" and that the rights of queer people are "founded on Constitutional doctrine".

Reading clauses (1) and (2) of Article 13 together, he argued that if section 377 was introduced in present day, it would not stand the test of Part III of the Constitution, and hence, the provision, as enacted in 1860, could not either.

At the outset of the hearing, the five-judge bench on 10 July had made it clear that it was not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.

It also said that the section was in contravention to Articles 14 and 15, which guarantee equality and prohibit discrimination.

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