The Supreme Court has asked the central government to respond to a writ petition filed by five members of the LGBT+ community challenging Section 377 of the Indian Penal Code. The petition will now be referred to a Constitution Bench, The Times of India reported. The court will be revisiting its 2013 judgment which said that the law does not violate the Constitution.
“A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of Constitution,” the three-judge bench headed by the Chief Justice of India said.
A two-judge bench of Justice SA Bobde and Justice Ashok Bhushan had in June 2016 had asked for the petition to be listed before the CJI, because the validity of Section 377 is already being examined by a Constitution Bench.
Activists and members of the LGBT+ community have long held that the law, which criminalises “carnal intercourse against the order of nature”, discriminates against the community. Several judges too had said that right to sexual orientation is part of one’s right to privacy while declaring privacy a fundamental right in August last year.
Since 2001, the cases pertaining to the law have seen many twists and turns after being challenged in the Delhi High Court. Here are the highlights of the cases which challenged it:
2001: Naz Foundation, an NGO working on sexual health and HIV/AIDS, files a petition before the Delhi High Court asking for Section 377 of the Indian Penal Code to be declared unconstitutional as far as it penalises “sexual acts in private between consenting adults”.
02/09/2004: Delhi High Court dismisses the petition saying “no cause of action has arisen”.
03/11/2004: Delhi High Court dismisses a review of the original petition.
2006: After petitioners went to the Supreme Court challenging the Delhi High Court judgment, the apex court asks the Delhi HC to hear the case again, saying it is a matter of public interest.
02/07/2009: Delhi HC declares Section 377 violative of Articles 21, 14, and 15 of the Constitution, “insofar it criminalises consensual sexual acts of adults in private”.
09/07/2009: Supreme Court issues notice after Suresh Kumar Koushal, an astrologer, challenges the judgment of the Delhi High Court.
11/12/2013: The Supreme Court sets aside the judgment of the Delhi High Court and declares that Section 377 does not violate the Constitution.
28/01/2014: The Supreme Court dismisses a review petition filed by Naz Foundation after the organisation challenges the 2013 judgment.
22/04/2014: After Naz Foundation files a curative petition, the Supreme Court asks the case to be listed before it.
02/02/2016: The Supreme Court asks the Chief Justice of India to constitute a Constitution Bench comprising of five judges for hearing the curative petition.
29/06/2016: The Supreme Court asks the Chief Justice of India to decide the fate of another petition regarding Section 377 filed by five celebrities of the LGBT+ community, as a Constitution Bench is to be constituted to hear cases about validity of the law. Petitioners had asked for orders declaring ‘Right to Sexuality’, ‘Right to Sexual Autonomy’, ‘Right to Choice of a Sexual Partner’ to be part of the Right to Life under Article 21 of the Constitution and Section 377 to be violative of the Constitution.
22/07/2016: Another petition challenging Section 377 filed by members of the transgender community is sent to Chief Justice of India because a Constitution Bench is to hear cases about validity of the law. The petitioners had asked for orders declaring Section 377 to be violative of the Constitution.