Chief Justice Dipak Misra Indicates Ban On Gay Sex May Soon Be Gone

On day 2 of the hearing, Tushar Mehta, the government lawyer, said, "we leave it to the court to decide".

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The Supreme Court is hearing a bunch of petitions that call for the scrapping of Article 377.

New Delhi:  Chief Justice of India Dipak Misra today indicated that the 150-year-old ban on gay sex may soon be gone. -We intend to rule, subject to arguments, that two consenting adults even if engaged in 'unnatural sex' will not be liable for prosecution for any offence,- Chief Justice Misra said. The observation of the court, which is hearing a bunch of petitions calling for decriminalization of gay sex and scrapping of the relevant law under Section 377, came after the government said it would leave the decision to the five-judge constitution bench.
Here are the top 10 points in this big story:
  1. LGBT activists have found hope in a series of observations by the Supreme Court, one of which held, "Section 377 is the infrastructure for denying rights. Once it falls, other rights will be realized".
  2. Earlier today, the government -- which earlier upheld the gay sex law -- left it to the court to decide whether the 150-year-old law banning gay sex will remain and whether it is constitutionally valid. The change in stand came after a landmark Supreme Court order on the Right To Privacy, in which the court said the law can't "trample or curtail" the constitutional right to life and liberty.
  3. The government's affidavit said if the court declares "Section 377 viz. 'consensual acts of adults in private', to be unconstitutional" the government will not go into any other issue. "The Supreme Court should not rule on any other issue as it could have far reaching consequences for future," said government's lawyer Tushar Mehta.
  4. Chief Justice of India Dipak Misra, who is leading a  five-judge constitution bench hearing the case, said, "We will only decide on the challenge to Section 377 and what civil rights follow, will be decided later".
  5. "If there are service conditions prohibiting LGBT and transgender people in services it will go once we hold Section 377 unconstitutional... This will help awakening in the society and help LGBT community will be able to live life to the fullest," CJI Misra added.
  6. Justice J Chandrachud, who is part of the bench, said, "We don't want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under Section 377".
  7. The Centre submitted its affidavit, stating its stand on the issue, on the second day of the hearing in the case. Yesterday, the bench said it would only examine the "correctness" of its verdict of 2013, which cancelled a Delhi High Court judgment that declared criminalizing gay sex between consenting adults was "unconstitutional".
  8. Five years later, in January this year, the top court decided to take a fresh look into the issue after a bunch of petitions calling for it piled up.
  9. Under Section 377 of the Indian Penal Code, sex "against the order of nature" draws a jail term and a fine. While prosecutions under it has been rare, activists say the police use the law to harass members of the LGBT community.
  10. In last year's landmark judgment on Right To Privacy, the Supreme Court said the rights of lesbian, gay, bisexual and transgender population are "real rights founded on sound constitutional doctrine".


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Highlights

1
The court is free to decide whether Section 377 is constitutionally valid
2
Top court is hearing petitions that demand the scrapping of Section 377
3
A 150-year-old law prescribes a life term in jail for gay sex

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