The Indian Supreme Court said the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts. The petitions against it seek protection of the sexual orientation and the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people.
For the first time, a few well-known gay individuals, a hotelier, a famous chef, and a classical dancer, are slated to give personal accounts of how the 1861 law has ruined their lives, thrust shame on them, and directly affected their chances of happiness. They dwell in privacy and dignity. Sexual orientation is an essential component of identity.
A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud refused to adjourn the matter when the Centre sought time to file its response to the petitions.
In 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench.
On January 8, the top court said that it will re-examine its verdict upholding Section 377, and observed that "a section of people or individuals who exercise their choice should never remain in a state of fear". The determination of order of nature is not a constant phenomenon. The Centre told the court that live-streaming can be undertaken.
The bench further added: "What is natural to one may not be natural to the other but the said natural orientation and choice can not be allowed to cross the boundaries of law and as the confines of law can not tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution".
Britain itself made gay sex legal in 1967.
Anjali Gopalan, founder of the Naz Foundation, an NGO working to prevent HIV/AIDS in New Delhi NGO, which lodged the first petition against the 1861 law in 2001, told the Guardian that the moment "feels right" to overturn the ban on gay sex. The other plea in this case is the batch of appeals filed by the six noted personalities.
The campaign for decriminalising gay sex also been bolstered by a supreme court ruling in August a year ago, which ruled that privacy, including a person's sexuality, was a fundamental right. The high court had stated that Section 377 was in violation of Articles 21, 14, and 15 of the Constitution. The bench can now consign to history an archaic and repressive piece of legislation that criminalises "unnatural" sex and denies a minority community fundamental human rights.
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