India

Petition by celebrities to be heard by CJI

29 Jun 2016 | By Rishikesh Malkhede
Section 377 v/s Indian Judiciary

The Chief Justice of India has decided to hear the petition filed by high-profile celebrities, which challenged Section 377 of the IPC.

Celebrity chef Ritu Dalmia, hotelier Aman Nath and dancer NS Johar turned to the SC for the protection of their sexual rights on the grounds that it is an integral part of the fundamental right to life.

In context: Section 377 v/s Indian Judiciary

Section 377What is Section 377?

Section 377 comes under Chapter XVI of the Indian Penal Code and was introduced during the colonial rule. It criminalizes any sexual activity 'against the order of nature'.

The section initially covered only anal sex, but later included oral sex and penile penetration of artificial orifices.

It provides a blanket prohibition 'on all penile non-vaginal sexual acts' under the ambiguous term, 'un-natural sex'.

U.S. legalizes same sex marriages

On 26 June 2015, the Supreme Court of United States ruled under Obergefell v. Hodges that no state can prohibit same sex marriages under any law. However, the nation still lacks Federal law outlawing discrimination nationwide.
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Petition filed in the Delhi High Court

Constitutionality of Section 377Petition filed in the Delhi High Court

In December 2001, Naz foundation filed a writ petition in the Delhi High Court challenging the constitutionality of Section 377 on the grounds of violation of the rights to privacy, dignity and health.

In 2004, the petition was dismissed by the court and a Special Leave to Appeal was filed in 2005.

A year later, SC stated that the matter does not require consideration.

July 2009Relief for the LGBT community

On 2nd July 2009, Delhi High Court decriminalised Section 377 which criminalized the consensual sexual acts of adults.

The verdict also stated that Section 377 violates Article 21, 14 and 15 of the Indian Constitution.

The High Court judgement brought smiles on the faces of millions of people and was responsible for many celebrations and coming-out parades.

December 2013Apex Court squashes High Court judgement

On 11 December 2013, the Supreme Court of India overturned the 2009 ruling which said homosexuality was not a crime.

The two-judge bench headed by Justice Sanghvi stated that the 2009 ruling was a judicial overreach and that the courts cannot create a law.

The bench passed the ball to the Parliament to review the law that considered private sexual activities criminal.

Curative petition filed

Challenging the decision of the Supreme Court, the Naz Foundation, along with journalist Sunil Mehra, chef Ritu Dalmia, parents of gay, lesbian, bisexual and transsexual people filed a curative plea in April 2014.
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2 February 2016SC refers the petition to five-judge bench

After refusing twice to entertain the pleas against Section 377, the SC passed the issue to a five-judge bench.

SC said that 'important constitutional issues' have been raised in the petition.

The bench comprising Chief Justice T. S. Thakur and justices Anil Dave and J. S. Khehar referred the curative petition, that sought a review of 2013 SC judgement, to a constitutional bench.

29 Jun 2016Petition by celebrities to be heard by CJI

02 Jul 2016India abstains from voting for UN post on sexual orientation

The 47-member UN Human Rights Council sought the appointment of an independent expert documenting misbehavior towards the LGBT community.

External Affairs Ministry spokesperson Vikas Swarup defended India's decision, claiming that the matter of LGBT rights is still sub-judice and this stopped India from voting for the UN resolution.

India's abstention from the UN vote earned angry reactions, being termed as "shameful, condemnable and heartbreaking".