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In 2009 the Supreme Court declared Section 377 of the Indian Penal Code, 1860 as unconstitutional. The said section earlier criminalised sexual activities “against the order of nature” which included homosexual acts. The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between two consenting adults – this violates the right to privacy and personal liberty under Article 21 of the Constitution. The Court held that classifying and targeting homosexuals violates the equal protection guarantee under Article 14 of the Constitution. Section 377 thus violated human dignity which forms the core of the Indian Constitution. The Supreme Court reversed the Delhi High Court verdict in 2013 in Suresh Koushal and held that the decision of decriminalizing homosexuality can only be done by the Parliament and not the Court. It also held that Section 377 criminalises certain acts and not any particular class of people. It also alluded to the minuscule number of people who were members of the LGBTI community and the fact that only a fraction amongst them had been prosecuted under Section 377. Several curative petitions were filed challenging the Supreme Court judgement. While the curative petitions against Suresh Koushal were pending, five individuals from the LGBTQ communities – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed a fresh writ a petition for scrapping Section 377 IPC in so far as it criminalised consensual sex between same-sex individuals. On September 6th, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.
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