Controversial Mississippi Law Limiting LGBT Rights Not Heading To Supreme Court

Posted January 09, 2018

A three-judge bench of Supreme Court headed by CJI Dipak Misra has agreed to reconsider and examine the constitutional validity of section 377 of Indian Penal Code (IPC). 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.

The plea seeking decriminalisation of homosexuality or gay sex between two consenting adults was referred to a larger bench by the apex court on Monday.

The federal appeals court did not rule previous year on the constitutionality of the law, known as HB 1523; it ruled that the plaintiffs did not have standing to challenge the law.

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Earlier this term, in December 2017, the justices declined to review a Texas Supreme Court ruling which found that state and local governments may be able to deny marriage benefits to LGBT public employees. 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".

By rejecting the cases, the top court leaves in place a federal appeals court decision that allowed the 2016 law to take effect.

Arvind Datar was speaking for the lesbian, gay, bisexual, and transgender (LGBT) community and said that section 377 was not a "reasonable restriction".

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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".

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.

SC has also issues notice to the Centre seeking response on a writ petition filed by five members of LGBT community, who say they live in fear of Police due to their natural sexual preferences, according to new agency ANI. It also asked to include them in the OBC quota.

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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. Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.