India to rethink colonial-era law criminalising gay sex

"A section of people can't live in fear of their individual choice".

Section 377 dates back to 1860 when Britain ruled India as a colony and comes with a punishment of up to 10 years in jail.

In 2012, the Delhi High Court struck down Section 377 of IPC but it was set aside by the Supreme Court in the 2013 judgement on the grounds that it is the job of the legislature to do away with it, and it is not the job of the court to legislate. Later, the Supreme Court overturned the decision in 2012. The petition has also alleged an issue bias by the court against the LGBT community through its references such as "the so-called rights of LGBT persons" in its 2013 judgment.

The HC held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.

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Why Supreme Court canceled the Delhi high court order?

The bench comprising of Supreme Court Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said, "societal morality changes with time, law walks with life". But, with the apex court deciding to revisit its decision on Monday, there is a renewed hope among the members of the LGBT community.

"This latest punt on LGBTQ rights by the nation's highest court promotes state-stationed discrimination by upholding a law that allows hotels, ER doctors, business owners, and even pediatricians to legally deny services to hardworking LGBTQ families in MS", said Sarah Kate Ellis, President and CEO of GLAAD. A promising sign, the Court also asked the government to respond to a petition from five LGBTQ people who said they live in fear of police due to their identities. "What is natural for one may not be natural for the other". "You can't put in jail two adults who are involved in consenting unnatural sex", Datar said and referred to a recent nine-judge bench judgment in the privacy matter to highlight the point that the right to choose a sexual partner was part of fundamental right. "Everybody has an equal right to live life the way they want", The Hindu quoted the All India Mahila Congress President Sushmita Dev as saying.

What's the Supreme Court verdict on transgenders? Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.

  • Adam Floyd