Published: Mon, January 08, 2018
Global News | By Stacy Ballard

Cong, LGBTQ activists welcome SC's decision to reconsider section 377

Cong, LGBTQ activists welcome SC's decision to reconsider section 377

"We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution", a bench comprising Chief Justice AP Shah and Justice S Muralidhar had said.

The petition requires the Supreme Court to reconsider its 2013 judgment in Suresh Kumar Kaushal versus Naz Foundation which upheld the legalities of Section 377.

Arvind Datar, counsel for Petitioners argued in the Supreme Court about the clarity of the consensual sex which punishes one of the partners while leaving the other which the Court did take a note and said "individual autonomy and individual's natural inclination can not be atrophied unless the restriction is reasonable to yield to the morality of the public at large". The court said that the confines of law can not trample on right to life and liberty, people who exercise their choice should not live in fear, according to NDTV.

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The section had been decriminalised by the Delhi High Court in 2009. The court asked the Centre to reply to the plea.

Political parties like Congress have supported SC's move.

The court said: "A section of people or individuals who exercise their choice should never remain in a state of fear". In 2004, the petition was dismissed by the High Court (citing lack of action). The issue of Section 377 of the IPC, which criminalises homosexuality, is pending before the top court.

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India's Supreme Court on Monday announced a review of a hugely controversial ban on gay sex, saying no one should have to live in fear due to their sexuality.

In 2016, a three-judge bench of then Chief Justice TS Thakur, Justice Anil R Dave and Justice JS Khehar had referred a batch of curative petitions against Section 377 to a five-judge Constitution Bench that was to be set up soon, The Hindu reported.

When the nine-judge bench of the Supreme Court declared privacy a Fundamental Right, it invited much cheer from many sections of the society, including the LGBT (Lesbian, Gay, Bisexual and Transgender) community in India. Referring to a recent nine-judge bench judgement in the privacy matter to highlight that right to choose a sexual partner is a fundamental right, Johar's counsel emphasised that "you can't put in jail two adults who are involved in consenting unnatural sex". "Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Privacy also connotes a right to be left alone".

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In May 2017, India faced a series of tough questions at the United Nations Human Rights Council's (UNHRC) Universal Periodic Review (UPR), with a host of the 112-member countries questioning it on the penalisation of same-sex sexual rights.

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