Supreme Court decriminalises Section 377, declares homosexuality legal

Section 377 Journey from King Henry VIII Macaulay to Supreme Court

The Supreme Court is likely to pronounce its verdict in the ongoing hearing over the decriminalisation of Section 377 of the Indian Penal Code tomorrow.

"Any discrimination on this basis is unconstitutional". "This freedom can only be fulfilled when each of us realizes that the LGBT community possesses equal rights". Let us get out of this maze.

The initial days of the Constitution Bench hearings saw the Bench debating whether it should travel beyond the topic of sexual orientation and examine the wider concept of "sexuality' to include co-habitation, etc".

The apex court had asserted that courts can not wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights.

Just three years after the gay sex was re-criminalised, the Chief Justice of India, in 2016, TS Thakur said that the pleas filed by the Naz Foundation in 2001 will be reviewed afresh.

The Constitution Bench hearing in the Section 377 case began on July 10, with Justice Chandrachud orally observing that a person's choice of a partner is a fundamental right to life, and a "partner" includes same sex partner.

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► Sexual orientation is one of many biological phenomenon.

Justice Nariman said, "If you license prostitution, you control it". Like Balachandra, other petitioners, as well as members from Pravritti, felt that this time, positive outcome would come. "But the SC has already recognised unique sexual orientation when it created "third gender" apart from "male" and "female" conventionally used till date", it had said.

India's Supreme Court is expected to rule on an archaic law that criminalises gay sex.

"The moment there is a finding that a provision violates the fundamental right of citizens, this court has power to strike it down irrespective of the majoritarian government's power to repeal, amend or enact law".

"Any consensual sexual relationship between two consenting adults - homosexuals, heterosexuals or lesbians - can not be said to be unconstitutional", said the Chief Justice of India, Dipak Misra, as he read out the judgment. But four years later, the Supreme Court overturned the verdict, saying any amendment must be made by parliament and not the judiciary.

Latest reports have said that the Supreme Court verdict will be delayed at least by 30 minutes.

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