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Supreme Court to review Section 377 which criminalises gay sex; All you need to know

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The Supreme Court said that a large group of judges would re-consider and examine the constitutional validity of Section 377 of the Indian Penal Code, the law which criminalizes sexual relationship against the law of nature. The Apex court will now revisit it’s 2013 verdict that criminalizes gay sex.

Section 377 has undergone many twists and turns ever since the Delhi High Court decriminalised it in 2009. Later, the Supreme Court overturned the decision in 2012. But, now, with the Apex Court deciding to revisit its decision, there is a renewed hope among the members of the LGBT community.

What is Section 377?


Section 377 of IPC, came into force in 1862 – defines unnatural offences. It 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 fine.” Moreover, the law also mentions that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”. This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.

Delhi High Court’s ruling in 2009

In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. Religious groups, however, had appealed against the decision in the Supreme Court. It held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.

Why Supreme Court canceled the Delhi high court order?

In 2009, the Apex court canceled the Delhi HC’s order and re-criminalized homosexuality. It said that it was the job of the parliament to decide on scrapping laws. The decision was widely criticised and was seen as a major setback for human rights. While prosecutions under section 377 have been rare, activists have said that the police used the law to harass and intimidate members of the LGBT community.

What is the present situation?

On Monday, a three-judge bench headed by Chief Justice of India Dipak Misra decided to re-examine the constitutional validity of Section 377 and said the matter would be referred to a larger bench. The court also issued a notice to the Centre seeking its response to a writ petition filed by five members of the LGBT community. The petitioners said they live in constant fear of police action because of their sexual preferences.

What’s the Supreme Court verdict on transgenders?

In the April 2014 verdict, hailed by gender rights activists, the apex court directed the Centre to declare transgenders a ‘third gender’ along with male and female. It also asked to include them in the OBC quota. Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.