Section 377: Twists and turns of 17-year battle for gay rights explained

The twists and turns in the legal battle to decriminalise gay sex has a history of 17 years, during which the first ray of light freeing it from criminal offence had come from the Delhi High Court -- the verdict that was reversed by the Supreme Court which on Thursday finally overruled its own decision.

The legal fight of LGBT community had started in 2001 with the filing of a petition by NGO Naz Foundation in the high court which had first dismissed it in November 2004 on technical grounds that the plea cannot be maintained as there was no cause of action to entertain it.

On an appeal, the apex court had however referred it back to the high court asking it to hear the case afresh. A bench of the then Chief Justice A P Shah and Justice S Muralidhar in 2009, decriminalised section 377 of the IPC.

The high court, on July 2, 2009, had legalised homosexual acts among consenting adults, holding that the colonial law making it a criminal offence was violative of the fundamental rights.

The verdict was challenged by one Suresh Kumar Koushal and others, including some religious organisations.

An apex court bench of Justices G S Singhvi and S J Mukhopadhyay on December 11, 2013, set aside the high court's verdict.

Later, the review petition of Naz Foundation was also rejected and the curative petitions were filed by the affected parties for re-examination of the original verdict.

However, during the pendency of the curative petitions, a batch of fresh pleas were filed in the apex court challenging section 377 of the IPC, which criminalised sex between consenting adults of same gender in private.

A new five-judge bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra was constituted to hear the fresh petitions.

Section 377 referred to 'unnatural offences' and stated that 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.

The fresh petitions, including a plea by a group of 20 former and current students of the prestigious IITs, were filed in the apex court seeking restoration of the high court verdict in the case.

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 was also seized of similar pleas filed by celebrities like dancer N S Johar, chef Ritu Dalmia and another hotelier Aman Nath challenging the validity of section 377 criminalising the consensual gay sex.

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. 

On a historic judgment, the apex court scrapped section 377 on Thursday and said that persons cannot be discriminated on the ground of sexual orientation.

The Supreme Court on Thursday delivered one of its most landmark judgements when it amended Section 377 of the Indian Penal Code.

The 493-page judgement was written by four judges headed by Chief Justice of India Dipak Misra. While CJI's verdict was 166 pages, Justice Nariman filed a 96-page judgment, Justice DY Chandrachud filed a 181-page judgement, and Justice Indu Malhotra's judgement was 50 pages.

He referred to Article 372(1) of the Constitution, which provides that all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed, and said the IPC and many other pre-Independence laws were 'saved' and allowed to operate in independent India.

Earlier, the Indian Psychiatric Association issued a statement supporting members and addressing the stigma associated with being queer. 

In a statement, the Indian Psychiatric Association said, “In the opinion of the Indian Psychiatric Association, homosexuality is not a psychiatric disorder. This is in line with the position of the American Psychiatric Association and the International Classification of Diseases of the World Health Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 respectively.

“The IPS recognises same sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may, in fact, lead to low self-esteem and stigmatisation of the person.

(With PTI inputs)