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Section 377: Supreme Court to hear pleas on homosexuality from today

A five-judge Constitution bench will be headed by CJI Dipak Misra will hear the petitions challenging criminalisation of homsexual sex from today.

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The Supreme Court will on Tuesday commence crucial hearing on a clutch of pleas challenging against Section 377 of the IPC which criminalises consensual gay sex between two adults. The apex court had on Monday rejected the Centre's plea seeking postponement of the proceedings.

A newly re-constituted five-judge Constitution bench will hear the petitions challenging criminalisation of homsexual sex between two consenting adults.

The new five-judge bench will be headed by Chief Justice Dipak Misra and comprise Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Section 377

Section 377 refers to 'unnatural offences' and says 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.

Timeline

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

The apex court had in 2013 had 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.

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

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

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

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". 

Pleas

When the top court had set aside the high court judgement decriminalising sex between consenting adults of same sex by holding Section 377 of IPC as "illegal", review petitions were filed. On their dismissal, curative petitions were filed by the affected parties for re-examination of the original verdict.

While agreeing to reconsider the 2013 verdict criminalising gay sex, the top court had in January this year said the section of people or individuals who exercise their choice should never "remain in a state of fear". It had also said the determination of the order of nature was not a constant phenomenon as social morality changed from age to age.

The apex court had on January 8 referred to a five-judge constitution bench, several pleas filed by eminent citizens and NGO 'Naaz Foundation' challenging the 2013 apex court verdict which had re-criminalised gay sex between consenting adults. It had also sought a response from the government.

Several fresh petitions, including a plea by a group of 20 former and current students of the prestigious IITs, were also filed seeking restoration of the Delhi High Court verdict in the case.

The apex court had on January 8 referred to a five-judge constitution bench, several pleas filed by eminent citizens and NGO 'Naaz Foundation' challenging the 2013 apex court verdict which had re-criminalised gay sex between consenting adults. It had also sought a response from the government.

The top court had dealt with two separate pleas filed by LGBT rights activists Arif Jafar, Ashok Row Kavi and others including Mumbai-based NGO 'Humsafar Trust' which fights for LGBT rights. It had on April 23 sought the Centre's reply on a hotelier's plea for striking down section 377.

The apex court is also seized of similar pleas filed by celebrities like dancer NS Johar, chef Ritu Dalmia and another hotelier Aman Nath challenging the validity of section 377 criminalising the consensual gay sex.

(With PTI inputs) 

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