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In India now you can be Gay and Happy

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New Delhi: In a landmark verdict, the Supreme Court on Thursday decriminalised Section 377 of the Indian Penal Code which criminalises consensual gay sex.

A five-judge Constitution bench, headed by Chief Justice of India (CJI) Dipak Misra and comprising Justices D Y Chandrachud, Rohinton Fali Nariman, A M Khanwilkar and Indu Malhotra, issued the verdict on a bunch of petitions filed to scrap the law. The bench had earlier reserved its verdict on July 17.

“LGBT Community has same rights as of any ordinary citizen. Respect for each others rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible,” CJI Dipak Misra said.

Criminalising gay sex is irrational and indefensible, observed the CJI while delivering the verdict. The Lesbian Gay Bisexual Transgender community has same rights as any other citizen, the CJI added. Respect for each other’s rights, and others are supreme humanity, observed the bench unanimously, while saying that the right to live with dignity is right.

Known as Section 377 of the IPC, the 157-year-old law criminalised certain sexual acts, terming them as ‘unnatural offences’, punishable by a 10-year jail term.

The law punished “carnal inter­course against the order of nature with any man, woman or animal” and thus had bigger implications for same-sex relationships.

The legal battle to scrap the statute has gone on for several years.

The Delhi High Court, in 2009, decriminalised homosexuality. But in 2013, the Supreme Court restored the colonial-era law. Three years later, the top court agreed to hear the Section 377 petition once more.

Petitioners before the Supreme Court argued that the controversial law was not in tandem with a 2017 ruling that guaranteed the right to privacy to people.

During the hearing in July, the government told the apex court that it would leave to the wisdom of the court to decide the constitutional validity of Section 377.

“Denial of self-expression is like death”, CJI Dipak Misra said in his verdict.

“Privacy of human beings constitutes the cardinal rule of our Constitution”, CJI Dipak Misra said.

“Dignity, protecting one’s identity and one’s privacy are the important pillars of the constitution”, CJI Dipak Misra added in the verdict.

What is Section 377? 

Section 377 refers to ‘unnatural offences’ and states that 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.

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Timeline

On July 2, 2009, the Delhi High Court had legalised homosexual acts among consenting adults, scraping the 149-year-old law making it a criminal offence was violative of the fundamental rights.

In 2013 the apex court restored the criminality of the sexual relationship between persons of the same sex after the Delhi High Court’ had decriminalised it in 2009.

2001: Naz Foundation, an NGO fighting for gay rights, files PIL in Delhi High Court seeking legalisation of gay sex among consenting adults.

September 2004: The HC dismissed the PIL seeking decriminalisation of gay sex; Gay rights activists filed a review petition.

November 3, 2004: HC dismissed the review plea filed by Gay rights activists.

December 2004: Gay rights activists approached SC against HC order.

April 3, 2006: SC remands the case back to HC, directs it to reconsider the matter on merit.

October 4: HC allows senior BJP leader B P Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.

September 18, 2008: Centre seeks more time to take stand on the issue after contradictory stand between Home and Health Ministries over the decriminalisation of homosexuality. HC refuses the plea and final argument in the case begins.

September 25, 2008: Gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.

September 26, 2008: HC pulls up Centre for speaking in two voices on homosexuality law in view of contradictory affidavits filed by Health and Home Ministries.

Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.

October 15, 2008: HC pulls up Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

November 2008: Govt in its written submission before HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

November 7, 2008: HC reserves verdict on pleas filed by gay rights activists seeking decriminalisation of homosexual acts.

July 2, 2009: HC allows plea of gay rights activists and legalises sexual activity among consenting adults of same sex.

July 9, 2009: Delhi astrologer challenges HC verdict in SC. Later, several others including BJP leader Singhal (since dead), religious organisations, rights activists and yoga guru Ramdev’s disciple also oppose the judgement.

February 15, 2012: SC begins final day-to-day hearing in the case.

March 27, 2012: SC reserves verdict.

December 11, 2013: SC sets aside the 2009 Delhi HC order which had decriminalised gay sex.

December 20, 2013: Centre files review petition in SC seeking a re-examination of its verdict.

December 24, 2013: Gay rights activists file the review petition in SC seeking a re-examination of its verdict.

January 28, 2014: SC refuses to review its verdict on criminalising gay sex, dismisses pleas of Centre, activists.

April 3, 2014: SC agrees to consider for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality.

February 2, 2016: SC refers curative pleas on homosexuality to the five-judge bench.

June 29, 2016: SC refers the plea of celebrities like dancer N S Johar, chef Ritu Dalmia and hotelier Aman Nath, for quashing of section 377 of the IPC, to a bench already seized of the matter.

August 24, 2017: SC declares right to privacy a fundamental right under the Constitution, also observes that “sexual orientation is an essential attribute of privacy”.

January 8, 2018: SC agrees to reconsider its 2013 decision and refers to a larger bench the plea challenging 377 of the IPC, saying that the societal morality “changes from age to age”.

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