Events leading up to decriminalising of Section 377: Chronology


Supreme Court on Thursday decriminalised part of Section 377 of the IPC which criminalises consensual unnatural sex. The constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 as irrational, indefensible and manifestly arbitrary.

The bench said that the part of Section 377 dealing with homosexuality is violative of the right to equality and the right to live with dignity.

But the battle has not been so easy for everyone who was in favor of decriminalising consensual unnatural sex. There is still a long way to go for the society to accept th LGBTQ community, says an activist. We have won the legal fight, but in society, we still have to gain victory says another LGBT activist Ankit Gupta.

Let us look at the chronology of events which dealt with Supreme Court’s decision to decriminalise a part of section 377 of the IPC.

– 2001: Naaz Foundation, an NGO fighting for gay rights, files PIL in Delhi HC seeking legalisation of gay sex among consenting adults.
– Sep 2004: HC dismisses the PIL; Gay rights activists file review petition.
– Nov 3: HC dismisses review petition.
– Dec: Gay rights activists approach SC against the HC order.
– Apr 3, 2006: SC remands the case back to HC, directs it to reconsider the matter on merit.
– Oct 4: HC allows senior BJP leader B P Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.
– Sep 18, 2008: Centre seeks more time to take stand on the issue after contradictory stand between Home and Health ministries over decriminalisation of homosexuality. HC refuses the plea and final arguments in the case begin.
– Sep 25: Gay rights’ activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.
– Sep 26: The Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
– Oct 15: HC pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.
– Nov: Govt in its written submission before HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
– Nov 7, 2008: HC reserves verdict on pleas filed by gay rights activists seeking decriminalisation of homosexual acts.
– Jul 2, 2009: HC allows plea of gay rights activists and legalises sexual activity among consenting adults of same sex.
– Jul 9: Delhi astrologer challenges HC verdict in SC. Several other pleas challenging the judgment also filed.
– Feb 15, 2012: SC begins final day-to-day hearing in the case.
– Dec 11, 2013: SC sets aside 2009 Delhi HC order which had decriminalised gay sex.
– Dec 20: Centre files review petition in SC seeking re-examination of its verdict.
– Jan 28, 2014: SC refuses to review its verdict on criminalising gay sex, dismisses pleas of Centre, activists.
– Apr 3: SC agrees to consider an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality.
– Feb 2, 2016: SC refers curative pleas on homosexuality to five-judge bench.
– June 29, 2016: SC refers the plea of celebrities like dancer N S Jauhar, chef Ritu Dalmia and hotelier Aman Nath, for quashing of section 377 of the IPC, to a bench already seized of the matter.
– Aug 24, 2017: SC declares right to privacy a fundamental right under the Constitution, also observes that “sexual orientation is an essential attribute of privacy”.
– Jan 8, 2018: SC agrees to reconsider its 2013 decision and refers to a larger bench the plea challenging 377 of the IPC. Later, 20 former and current students of the IITs join the fight against section 377 of IPC.
– July 9: SC refuses to adjourn proposed hearing by a five-judge Constitution bench on a batch of petitions challenging its verdict that had re-criminalised consensual carnal sex between two adults.
– July 10: Five-judge constitution bench commences hearing on batch of pleas.
– July 11: Centre leaves it to the wisdom of SC to decide the validity of Section 377.
– July 12: SC rejects demand for a referendum over constitutional validity of Section 377 saying it would not go by majority opinion.
– July 17: SC reserves verdict saying that the courts cannot wait for a majoritarian government to decide on enacting, amending or striking down a law if it violates fundamental rights.
– Sep 6: Constitution bench unanimously decriminalises part of Section 377 of the IPC which criminalises consensual unnatural sex, saying it violated the right to equality.

The judgment was delivered by a five-member bench — Chief Justice of India Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Section 377 refers to ‘unnatural offences’ and says 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.

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