As the right to privacy being considered a fundamental right, the Supreme Court today chose to review it's 2013 decision, which criminalizes gay sexual relations and said it will review Section 377 of Indian Penal Code that creates such relations a crime. A bench, comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, was hearing a fresh plea filed by Navtej Singh Johar, seeking to declare section 377 as unconstitutional. "Any decision that the Supreme Court takes in sync with the jurisprudential developments on gay rights the world over would be welcome", BJP spokesperson GVL Narsimha Rao said.
On 24 August, as a nine-judge bench of the apex court held privacy to be a fundamental right, a fresh debate sparked regarding its impact on the decriminalization of homosexuality.
In 2013, a two-judge bench of Justices G.S. Singhvi and S.J. Mukhopadaya had ruled that Section 377 of the IPC was illegal, overturning a judgment of a three-judge bench of the Delhi high court which had decriminalised gay sex. Dating back to the 1800s, Section 377 criminalises anal and oral sex, referring to it as "unnatural sex", and states that it is "against the order of nature with any man, woman or animal". A section of people or individual who exercise their choice should never live in a state of fear.
The Supreme Court also mentioned to a Constitutional bench the petition seeking to decriminalize consensual sex between LGBTQ adults. 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 petitioners had told the court they were living in constant fear of police action due to their sexual orientation.
Signed into law in 2016 in response to the Supreme Court's gay marriage ruling, it allows county clerks to avoid issuing marriage licenses to gay and lesbian couples and protects businesses from lawsuits if they refuse to serve LGBT customers. "Everybody has an equal right to live life the way they want", The Hindu quoted the All India Mahila Congress President Sushmita Dev as saying.
The Supreme Court did not state why it did not take up the case.
Alliance Defending Freedom, a nonprofit organization that is part of the legal team representing Gov. Phil Bryant in the cases, argued that the MS law had been misinterpreted. It also asked the Centre to include them in the OBC quota.