A Supreme Court bench on Monday (Jan 8) agreed to reconsider the apex court’s 2013 decision of criminalising gay sex. It said that it will re-examine Section 377 of the Indian Penal Code after it legalised right to privacy as our fundamental right.

The SC also sought the Centre’s stand on the issue after five members of the LGBTQ community filed a writ petition claiming that they are forever scared of the authorities because of their natural sexual orientation.

The three-judge bench — Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud — noted that the SC’s 2013 verdict that outlawed—consensual sex between two gay individuals—is a hindrance to people of various sexuality other than men and women.

“We could have gone to court on privacy grounds. But we didn’t because that is not acceptance. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that”

Then the bench showed cognizance to the August 2017 verdict of the Supreme Court that gave fundamental right to privacy to every individual of the country. This order coincided with dignifying the privacy of people of all sexual orientation.

Earlier in August, supporters of the LGBTQ community welcomed the SC’s verdict of granting right to privacy to one and all. Lawyers and activist said that this made a strong case to prohibit Section 377 in the coming future. Activist Gautum Bhan at that time told media that Right to Privacy grants an “aspect of dignity and equality, particularly in the case of LGBTQ rights”.

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“We could have gone to court on privacy grounds. But we didn’t because that is not acceptance. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality,” Bhan said.

Section 377 is a 153-year-old law written by the British rule in India in 1860. It says that anal sex between two consenting individuals is “unnatural offence”. It punishes the offender with punishment that is equal to rape under Section 376. This is not it, the law also penalizes oral sex between a man and a woman. It only considers intercourse as the “order of nature”.

Picture credit- LiveMint

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