The Supreme Court is to pronounce its verdict tomorrow on whether or not homosexuality should be a crime in India or not. The case had reinstated a controversial British-era ban on gay sex.
In a hearing that was conducted earlier this year, the court stated, “no one should have to live in fear because of their sexuality”.
Three judges of the Supreme Court that include Chief Justice Dipak Misra, said, “Societal morality changes from age to age. Law copes with life and accordingly, change takes place.”
The judges further added, “section of people who exercise their choice should never remain in a state of fear”.
The judges had asked a larger group of judges to conduct Section 377, the 1861 law that criminalizes sexual activities “against the order of nature”.
Five high-profile petitioners, who state they are living in the fear of being punished, have challenged the ban on gay sex. On the other hand, the government seems to be “going by the court” given that decriminalization is a global trend and would not goad for criminalizing gay sex.
The Supreme Court also took note of the fact that “choice can’t be allowed to cross the boundaries of law but the confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21, the right to life and liberty.”
The law states that those who are convicted under the Section 377 of the Indian Penal Code, will face a term of up to 10 years in jail.
The ones that have filed a petition are Aman Nath who is the owner of Neemrana hotels, restauranteur Ayesha Kapur, celebrity chef Ritu Dalmia, editor Sunil Mehra and classical dancer Navtaej Johar.
It was in the year 2013 that the Supreme Court had cancelled a court order by the Delhi High Court that had decriminalized homosexuality as it overturned the outdated law and stated it to be the job of the parliament to call the shots on scrapping laws.
The Supreme Court stated that the decision needs to be reconsidered due to certain constitutional issues.
Further, it was in the year 2009 that the Delhi High Court has elucidated Section 377 to be a violation of the fundamental rights guaranteed by the constitution. It has responded to a petition filed by the Naz Foundation which has fought for gay rights for almost a decade.
Albeit prosecution under section 377 is not common, but as per the gay activists, the police use the law to intimidate and harass the members of their community.