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Cong welcomes SC decision to revisit gay sex law

09 January 2018

The Supreme Court said that a large group of judges would re-consider and examine the constitutional validity of Section 377 of the Indian Penal Code, the law which criminalizes sexual relationship against the law of nature.

Three judges including Chief Justice Dipak Misra said a larger group of justices would reconsider the law following a petition filed by five people who say they are living in fear of being prosecuted. The judgment said, "We hold that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the High Court is legally unsustainable".

In 2009, the High Court of Delhi ruled against the law, but in 2013, the Supreme Court set aside that ruling, keeping the law in place.

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Section 377 of IPC, came into force in 1862 - defines unnatural offences. But, with the apex court deciding to revisit its decision on Monday, there is a renewed hope among the members of the LGBT community.

The bench was hearing a plea filed by one Navtej Singh Johar seeking to declare section 377 as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex. "A section of people or individuals who exercise their choice should never remain in a state of fear". The petitioners had told the court they were living in constant fear of police action due to their sexual orientation.

"We had challenged it before it went into effect. before people were hurt and turned away and left without all the access to health care and government services that everyone else has", says Beth Littrell, a lawyer for Lambda Legal, a legal organization that advocates for LGBT people.

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The law was thought to be vulnerable to legal challenge since a landmark September judgment that recognised article 21 guaranteed a right to privacy.

This follows the apex court's August judgment holding privacy to be a fundamental right and additionally that sexual orientation forms an essential attribute of privacy. A promising sign, the Court also asked the government to respond to a petition from five LGBTQ people who said they live in fear of police due to their identities.

The activist Gautam Bhan said SC's reading of the right to privacy as an aspect of respect and equality, especially in the case of LGBTQ rights, was welcome.

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The Supreme Court did not state why it did not take up the case. It also asked the Centre to include them in the OBC quota.

Cong welcomes SC decision to revisit gay sex law