The Supreme Court Keeps Ducking Gay Rights Cases

The Supreme Court Keeps Ducking Gay Rights Cases

"The top court's judgment upholding validity of Section 377 appears to hurt the sexual preferences of individuals", said the three-judge bench of Chief Justice Dipak Misra, Justices A M Khanwilkar and D Y Chandrachud. For example, religious organizations and state employees declining to officiate same-sex marriages; foster parents raising foster children according to these beliefs; medical professionals declining to provide services to people seeking sex-reassignment surgery; and wedding service providers who deny service to same-sex couples.

The Supreme Court says it will not take up a challenge to a MS law that allows businesses and government officials to deny services to LGBT people if doing so would conflict with certain "sincerely held" religious beliefs.

People who are refused service once the law is in place may be more likely to be judged to have legal standing to sue. "Choice can't be allowed to cross boundaries of law, but confines of law can't trample or curtail the inherent right embedded in an individual under Article 21 of the Constitution", the bench observed.

Of the five petitioners, Navtej Singh Johar is a renowned Bharatnatyam dancer and victor of the Sangeet Natak Akademi Award, Sunil Mehra is a journalist, Ritu Dalmia is a restaurateur and Aman Nath is a hotelier and co-founder/chairman of the established Neemrana hotel chain.

In 2013, a two-judge bench had set aside the Delhi High Court's 2009 judgment to decriminalise homosexuality.

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Section 377 reads, "Whoever voluntarily has carnal intercourse against the order of nature with man, woman or animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable for be fine". The court provided a big boost to the LGBT community by declaring that the 2014 order, which annulled a Delhi High Court verdict decriminalizing gay sex between consenting adults was gravely erroneous.

Anand Grover, a senior lawyer who argued the case that initially overturned the law, said in light of the privacy judgment, this year's challenge had "no choice but to succeed". The apex court also issued a notice today to the Centre seeking its response to a writ petition filed by five members of the lesbian, bisexual, gay, transgender and queer (LGBTQ) community, who said they live in anxiety of police due to their natural sexual orientation and preferences.

Section 377 of IPC, came into force in 1862 - defines unnatural offences.

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.

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