NewDelhi: The Supreme Court will announce its verdict on Thursday on several petitions seeking decriminalisation of a 158-year-old colonial law under Section 377 of the IPC which criminalises consensual gay sex. Section 377 refers to ‘unnatural offences’ and 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 pay a fine.
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. The Centre, which had initially sought the adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of the legality of the penal provision with regard to the aspects of criminalising consensual unnatural sex between two consenting adults. The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.
* The judges in the case had previously said that gay people in India face deep-rooted trauma and live in fear.
* Anwesh Pokkuluri, another petitioner, said, “Based on how the proceedings have gone, we do not see how they can uphold (the ban).”
* As the nation awaits the verdict by the Supreme Court, one of the petitioners in the case Akhilesh Godi said, “The mood is extremely optimistic, the judges have been extremely empathetic. It is not only about decriminalising but recognising our fundamental rights.”
* CJI Deepak Mishra and Justice DV Chandrachud will give their separate judgments.
* The verdict is likely to pronounce its verdict at around 11:30 am.
* A five-bench judge, headed by CJI Deepak Mishra will sit for deciding the verdict 10.30 am.
The issue of section 377 was first raised by an NGO, Naaz Foundation, which had in 2001 approached the Delhi High Court that had decriminalised sex between consenting adults of the same gender by holding the penal provision “illegal”.
Although the Delhi High Court had struck down the provision in 2009, it was revived by the Supreme Court in 2013 in a widely criticised judgment by a Division Bench of Justice G S Singhvi and Justice S J Mukhopadhyaya. However, the issue resurrected in July 2016, when a fresh petition filed.
The five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on fresh writ petitions in the matter.
“Social stigma will go if criminality of gay sex under Section 377 goes. Once the criminality (under section 377) goes, then everything will go (all the bars, social stigma and others),” said the bench headed by CJI Deepak Misra, which also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
Observing that an environment has been created in the Indian society over the years that has led to deep-rooted discrimination against the community, the bench had said discrimination against such people has also adversely impacted their mental health.
The writ petitions were opposed by the Apostolic Alliance of Churches, Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal who had also challenged the 2009 verdict of the high court in the apex court.
LGBTQ (lesbian, gay, bisexual, transgender and queer) community faced the stigma because of the criminality attached to consensual same-sex relationship, the bench had said.
The Central government had left it to the apex court to test the constitutional validity of section 377 of the IPC which criminalises “consensual acts of adults in private”, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.
Taking note of the Centre’s submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.
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