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SC upholds Sec 377 of IPC, says gay sex criminal offence

DC ONLINE/PTI
Published Dec 11, 2013, 5:03 pm IST
Updated Mar 18, 2019, 11:20 pm IST
Division upholds Sec 377 of IPC, asks lawmakers to change the colonial mindset if needed.

New Delhi: The Supreme Court on Wednesday upheld Section 377 of the Indian Penal Code that criminalises homosexuality.

Setting aside a Delhi High Court that had struck down Section 377, a Division Bench of the Supreme Court said there is no constitutional indemnity provided to Section 377 and hence it is constitutionally valid. If the Section has to be changed, it is upto Parliament to do so, the court said.

The court was dealing with a bunch of petitions challenging the Delhi High Court judgement decriminalising gay sex among consenting adults in private.

The bench of justices G S Singhvi and S J Mukhopadhaya delivered the verdict on petitions of anti-gay right activists, social and religious organisations against the 2009 verdict of the high court, which decriminalised gay sex.

The judgement was pronounced by Justice Singhvi on his last working day as he will be retiring on Wednesday. The bench had reserved its order in March last year after granting day-to-day hearing of the case from February 15, 2012.

While hearing the appeal, the apex court had pulled up the Centre for its "casual" approach on decriminalisation of homosexuality and also expressed concern over the Parliament not discussing such important issues and blaming judiciary instead for its "over-reach".

While pleading for decriminalisation of gay sex, the Centre had subsequently told the court that the anti-gay law in the country had resulted from British colonialism and the Indian society was much more tolerant towards homosexuality.

The Delhi High Court had on July 2, in 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence.

Section 377 (unnatural offences) of the IPC makes gay sex a criminal offence entailing punishment up to life term. Senior BJP leader B P Singhal, who died in October last year, had challenged the high court verdict in the Supreme Court saying such acts are illegal, immoral and against the ethos of Indian culture.

Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the judgement.

Next: Chronology of the 12-yr-long legal proceedings

 

Chronology of the 12-yr-long legal proceedings

  • 2001: An NGO fighting for gay rights, Naz Foundation, files PIL in Delhi High Court seeking legalisation of gay sex among consenting adults.
  • Sept 2, 2004: High Court dismisses the PIL seeking decriminalisation of gay sex. Sept: Gay right activists file review petition.
  • Nov 3: HC dismisses the review plea.
  • Dec: Gay rights activists approach the apex court against the order of the High Court.
  • Apr 3, 2006: Apex court directs the HC to reconsider the matter on merit and remands the case back to High Court.
  • Oct 4: HC allows senior BJP leader BP Singhal's plea, opposing decriminalising gay sex, to be impleaded in the case.
  • Sept 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. HC refuses the plea and final argument in the case begins.
  • Sept 25: Gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.
  • Sept 26: HC pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.
  • Sept 26: Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
  • Oct 15, 2008: HC pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.
  • Nov: Government in its written submission before the HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
  • Nov 7: HC reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts. Jul 2, 2009: HC allows plea of gay rights activists and legalises gay sex among consenting adults.
  • Jul 9: Delhi astrologer challenges HC verdict in SC. Later on, several others including BJP leader Singhal (since dead), religious organisations, rights activists and yoga guru Ramdev's disciple have also opposed the judgement.
  • Feb 15, 2012: SC begins final day-to-day hearing in the case.
  • March 27, 2012: SC reserves verdict.
  • Dec 11, 2013: SC sets aside the 2009 Delhi High Court order which had decriminalised gay sex.

...




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