Nearly six weeks after the Supreme Court (SC) had reserved its verdict on the decriminalisation of homosexuality under Section 377 of the Indian Penal Code, the top court will today announce its verdict on the matter.
Section 377 criminalizes sexual intercourse that is penile and non-vaginal, deeming it “against the order of nature”. The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT) population, in particular, but its provisions can also be applied to heterosexual citizens.
In 2009, the Delhi High Court had ruled in favour of decriminalising section 377 - a decision which was overturned only to by a two-judge Supreme Court bench in 2013, in the Suresh Kumar Koushal versus Naz Foundation case.
Here is a look at the key points to watch out for, during the announcement of the verdict:
Criminalising Consensual Gay Sex
The Supreme Court had re-affirmed that the scope of the present litigation was only limited to the constitutional validity of Section 377 with regard to recognizing homosexuality as a crime and stated that it would address civil rights and other issues when they come before the court.
Constitutional Validity
The petitioners, in July, had argued that Section 377, in so far as it criminalizes homosexuality, violates Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life) of the Constitution of India.
At the same time, Maneka Guruswamy had quoted instances of discrimination faced by members of the LGBT community and said the petitioners sought emancipation of a “class of people left out of the promises of our Constitution”. She referred to the Indian Psychiatric Society’s stand on homosexuality not being a mental disorder.
“The Constitution of India begins by saying We, the people of India and not we the heterosexual people of India. We cannot look at the state as a parent. We have to demand our rights,” said Kaushik Gupta, a lawyer-activist.
Legal Validity
K.S. Radhakrishnan, who also appeared for one of the parties, argued that Section 377 did not criminalize “sexual orientation” but penalized “certain acts” and stated that criminalisation of such acts was necessary to prevent the risk of HIV AIDS.
Additional solicitor general of India, Tushar Mehta, had also countered arguments in favour of decriminalizing homosexuality, stating that “it might lead to a possible challenge to prohibition against incestuous relations under personal laws.”
Centre’s Perspective
Passing the buck, the centre had put the onus of deciding the fate of Section 377 on the Supreme Court, with the latter indicating that it was planning to do away with the sections that criminalised homosexuality. On its part, the Supreme Court had said, that in doing so, the stigma attached to homosexuality would eventually be removed.
CJI Dipak Misra’s Final Decisions
The verdict on Section 377 will be one of the key defining moments before Chief Justice of India Dipak Misra hands over the reins to his successor, Justice Ranjan Gogoi, on 3 October. With three weeks to go, all eyes will now be on Misra to deliver judgements on key important issues.
