Published: Tue, January 09, 2018
Global Media | By Garry Long

Supreme Court Allows Draconian 'Religious Freedom' Law To Stand

Supreme Court Allows Draconian 'Religious Freedom' Law To Stand

Reopening the debate on Indian Penal Code's Article 377, the three-judge bench of the apex court, headed by CJI Dipak Misra said, "it would reconsider and examine the Constitutional validity of section 377". Before the law had taken effect, the judges did not find the plaintiffs had proved that the law had harmed them enough to have legal standing.

Senior advocate Arvind Datar, appearing for Mr Johar, said that the penal provision was unconstitutional as it also provided prosecution and sentencing of consenting adults.

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.

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.

The lesbian gay bisexual transgender (LGBT) community has been demanding scrapping of Section 377 of the IPC, under which consensual sexual acts between members of the same sex are an offence entailing punishment up to life term.

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Congress spokesperson Manish Tewari reiterated that the Congress favoured decriminalisation of gay sex.

"We will keep fighting in MS until we overturn this harmful law, and in any state where anti-gay legislators pass laws to roll back LGBT civil rights", said Beth Littrell of Lambda Legal, a public interest law practice representing the plaintiffs. Littrell says that now that the Supreme Court has declined to take up the case, she believes more LGBT individuals will be tangibly harmed by state officials, religious organizations and service providers. "What is natural to one may not be natural to others", the top court said. "It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality", Bhan said.

The court referred the matter to a Constitution Bench and issued a formal notice to the Union government for its response on the issue. "The time has come that either the courts must read down Section 377 or the government should repeal it from the IPC". We are living in 21st century.

"This latest punt on LGBTQ rights by the nation's highest court promotes state-stationed discrimination by upholding a law that allows hotels, ER doctors, business owners, and even pediatricians to legally deny services to hardworking LGBTQ families in MS", said Sarah Kate Ellis, President and CEO of GLAAD.

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