The Supreme Court of India announced on Monday that it will re-examine its controversial 2013 verdict criminalising gay sex responding to pleas of five petitioners who said that they were living in fear of being punished.
The law in question, Section 377 of the Indian Penal Code, is a law which dates back to the 1800s which criminalises “carnal intercourse with any man, woman or animal” stating that it is “against the order of nature” and anyone found practising it will be sentenced to life term or ten years of imprisonment and is also liable to pay a fine.
The top court bench comprising of Chief Justice Dipak Mishra and Justices A M Khanwilkar and D Y Chandrachud said that the constitutional validity of the law needs to be debated upon by a larger bench, reopening the debate of homosexuality in India.
The bench said, “A section of people or individuals who exercise their choice should never remain in a state of fear. The determination of order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly changes take place.”
The bench also said “What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law curtail the inherent right embedded in an individual under Article 21 of the Constitution.”
This comes after the ruling of a nine judge bench in August 2017 over the Right To Privacy in India stating that privacy is a fundamental right and that the right of sexual orientation also is an essential attribute of that right and that the rights of the LGBT population are “real rights founded on sound constitutional doctrine,” giving hope to the LGBTQ+ community in India. A senior lawyer told news agency ANI that, “Section 377 is dead after the nine judge bench which has said all these are dimension of Right to Privacy. It will formally be struck down soon. It will be done very soon.”
Soon after the news broke out, people were found talking about it on social media platforms. The hashtags “#Section377” and “#StrikeDown377” could be seen trending worldwide on Twitter. While a lot of people were in favour of the decision, some were against it too, saying “homosexuality is a disease.”
India’s stand on homosexuality at the UN is neither for nor against. If the Supreme Court decides to scrap Section 377 then India will become the 27th nation in the world to decriminalise gay sex.