Section 377: Supreme Court set to give ruling on plea to legalise gay sex

NEW DELHI: A Constitution bench of the Supreme Court will on Thursday pronounce its verdict on pleas for legalising gay sex and decriminalising Section 377 of the IPC to protect sexual orientations of the LGBTQ community , holding out promise of a new dawn for personal liberty.Though only the verdict would unfold what holds in store for the LGBTQ community, the loud hints dropped by the SC during the days of hearings point towards relief from the rigour of Section 377 for consensual adult gay sex.While reserving the verdict on July 17, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra had brushed aside as “far-fetched” the arguments from opponents of decriminalisation of Section 377 that it could also legalise incest, group sex and sodomy. Prior to reserving the verdict, the bench had, in what was seen as yet another indication of which way it could go, also disapproved arguments that majority of people in India were against legalising gay sex.The Supreme Court’s constitution bench had said: “We decide questions of law on the basis of the Constitution, constitutional principles and its ethos and not based on a referendum.”The SC was firm that no community, howsoever minuscule in comparison to the majority population, could be deprived of their sexual rights and expression of sexual orientation. It had said that sex as per the order of nature was conceived as intercourse between man and woman for the purpose of procreation. “It could have come from the Bible or any other religious text. 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.The five-judge bench was also disinclined to entertain concerted requests from various organisations to leave the decision on decriminalising Section 377 to Parliament given the wide ramification of legalisation of gay sex on matrimonial and civil laws.The bench had said: “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. It is for us to strike it down the moment something violates fundamental rights.”Two years ago, a petition was filed by dancer N S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur alleging that Section 377 violated their right to privacy and personal liberty. When their petitions were pending, a nine-judge bench of the SC had ruled on August 24, 2017 that every individual had a fundamental right to privacy, which was a part of the right to life.