Why in the news ?

• Supreme Court referred to a larger Bench a writ petition filed by five gay and lesbian members of the LGBT community to strike down the colonial Section 377 in the Indian Penal Code of 1860, which criminalises homosexuality.

Background

• An NGO fighting for gay rights, Naz foundation, files PIL in the Delhi High Court in 2001 seeking legislation of gay sex. HC dismisses the PIL in 2004.
• Gay activist approach to the Supreme Court, Supreme court directs HC to reconsider the PIL in 2006.
• In 2008, centre says gay sex is immoral.
• In 2009, High Court allows plea of gay rights activists and legalises homosexuality. Delhi astrologer challenges HC verdict in the supreme court.
• In 2013, Supreme court sets aside the 2009 Delhi High court order decriminalising gay sex. 

More on news

• A three-judge Bench, led by Chief Justice of India Dipak Misra, decided to revisit a December 2013 verdict of the Supreme Court in the Suresh Kumar Kaushal versus Naz Foundation, which dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation.
• The order reveals a paradigm shift in the apex court’s views.
• A Review Bench of the Supreme Court, in January 2014, had agreed with the December 11, 2013 verdict refusing to strike down Section 377 IPC.

• The supreme court bench order arises out of landmark ruling on August 24, 2017, declaring individual privacy a guaranteed fundamental right. "Sexual orientation is an essential attribute of privacy ," the Supreme court had said.

Petitioner's stand

• Section 377 is not a reasonable restriction on the fundamental right to choice. It destroy individual choice and sexual orientation.
• The petitioners had contended that section 377 “infringes their right to sexuality and also has a cascading effect of barring the petitioners from accessing the unenumerated rights which Supreme Court has held from Article 21 of the Constitution of India.”
• “The ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfold the full potential of the personality of any human being… Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness”, said the petitioners.

SC Bench's stand

• The Bench said a section of people cannot live in fear of a law which atrophies their right to follow their natural sexual inclinations. It said societal morality changes with time, and law should change pace with life.
• The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample on or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution
• The court agreed that both its decisions emphasising transgender identity in the NALSA case and the observations made by a nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warrant a re-look into its dismissive verdict in the Naz case.

Rainbow of hope

• The Supreme Court’s decision has brought a ray of hope for LGBT community members and activists who have been fighting a long battle for their rights.
• Several activists and lawyers felt that the years of dialogue, pride parades and petitions had created public opinion in their favour, and only a few people with a “myopic vision” were opposed to the scrapping of the controversial law.
• According to the experts, the matter was of utmost social and legal significance and a positive move had been initiated by the court for a re-look into the earlier judgment which, according to them, required reconsideration.

Source

The hindu, Indian Express