Ahead Of Supreme Court Verdict, Here Are The Key Things To Know

The Supreme Court will pronounce its verdict today on whether Section 377 of the Indian Penal Code (IPC) is constitutionally valid, a decision that will have far-reaching implications for millions of Indians. Here is everything you need to know about the colonial-era law and what today’s verdict will mean:

What is Section 377?

Introduced in 1861 during the British rule, this law was modelled on the Buggery Act of 1533 and criminalised sexual activities “against the order of nature”. This has been used to criminalise sexual activity between homosexual people, adding to the trauma faced by the community in India, where lack of awareness and deeply conservative attitudes can make it difficult to find a support system. The IPC section 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 ten years, and shall also be liable to (pay a) fine”.

What exactly is the Supreme Court deciding today?

The judgement is on a batch of petitions, including the lead one filed by dancer Navtej Singh Johar and others. A five-judge Constitution bench — comprising Chief Justice Dipak Misra, Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra — in July heard arguments on the petitions, which urged it to reconsider its own 2013 judgement which set aside a historic 2009 order by the Delhi High Court. On 17 July, the bench had reserved its order on the matter. The court has said it will strike down Section 377 if it is convinced that the law violates fundamental rights. Initially, the bench debated whether it should look at larger questions beyond sexual orientation but CJI Misra finally observed that the issue of the section’s constitutionality should be settled first. The government also said it would not contest the petitions, instead leaving it to the court’s “wisdom” to decide the matter. While reports said initially that that there will be two opinions for the bench, one authored by Misra and the other by Chandrachud, later, some legal portals and journalists have said that everyone except Khanwilkar will be penning separate judgements.

What did the Supreme Court do in 2013?

A two-judge bench of the Supreme Court — Justices GS Singhvi [who retired immediately after the verdict] and SJ Mukhopadhaya — set aside a 2009 Delhi high court judgement that decriminalised homosexuality, dealing a huge blow to the LGBTQ community and right activists. The bench said: “We hold that Section 377 does not suffer from… unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable”. At the same time, it also said the government was free to annul the law through legislation.

How did the matter first land up in court?

An organisation called AIDS Bhedbhav Virodhi Andolan first filed a write petition in the Delhi high court in 1994, asking it to declare Section 377 unconstitutional. However, the petition was dismissed in 2001. Naz Foundation, an NGO, approached the Delhi high court in 2001 over the matter. In 2009, a bench comprising then Chief Justice AP Shah and Justice S Murlidhar said, “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.” The 2009 judgement had been widely celebrated as path-breaking and progressive, but the 2013 SC order meant that the fight became even harder. The Naz Foundation filed a curative petition in 2014 and since then, more petitions were filed. The landmark right to privacy judgement of 2017 also provided fresh impetus for the top court to consider the matter again.

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