History In The Making : Supreme Court Set To Reconsider Section 377 Which Criminalizes Gay Sex

Taking into account the ‘Right of Privacy’ being deemed as a fundamental right, the Supreme Court today stated that it’ll look into the supposed criminalisation of gay sexual relations and review its 2013 decision.The Supreme Court also issued a notice to the centre anticipating its response to a petition filed by the members of the LGBTQ+ community who mentioned that they lived in constant fear of the police because of their natural sexual orientation.

In December 2013, the Supreme Court of India has set aside the 2009 high court verdict which stated that gay sexual relations were not a crime. Today, the apex court referred the petition dealing with decriminalising gay sex to a constitution bench. A three judge bench, consisting of Chief Justice Deepak Mishra and justices A.M. Khanvilkar and DY Chandrachud commented that Section 377 of the Indian Penal Code which criminalised gay sexual relations appears to hurt the sexual preferences of certain individuals.The bench also took into account the August judgement which granted a status of a fundamental right to the Right to Privacy. The judges also seemed to favour the independent expression of queer sexualities.

It is important to be underlined here that the granting of the status of a fundamental right to the Right to Privacy made a strong case for the sexual minorities. At the time, the activist Gautam Bhai commented that the SC’s reading of the Right to Privacy as an aspect of dignity was welcome, especially in the case of LGBTQ+.

Section 377, established by the British over 150 years ago terms anal sex as ‘unconstitutional vice’ and provides punishment equivalent to rape under the section 376. It even outlaws oral sex, stating that only ‘penile-vaginal’ sex was not against the order of nature.

‘We could have gone to the court on Privacy grounds, but we didn’t because that is not acceptance. It is just tolerance who favours the elites who can lead their lives behind closed doors. The judgement was more than that, it dealt with privacy but also took into account respect and dignity. It reaffirms the Delhi High Court judgement in speaking of sexuality within the framework of constitution.’ Bhai commented.

Gay activists all across India have welcomed the court’s views.

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