Supreme Court Allows Draconian 'Religious Freedom' Law To Stand


The Supreme Court said Monday that while choice can't be allowed to cross the boundaries of law, laws shouldn't trample or curtail the inherent right to freedom granted to individuals by the Indian Constitution. The state enacted its law less than a year after the 2015 Supreme Court ruling that legalized same-sex marriage nationwide.

In 2012, the Delhi High Court struck down Section 377 of IPC but it was set aside by the Supreme Court in the 2013 judgement on the grounds that it is the job of the legislature to do away with it, and it is not the job of the court to legislate. Unfortunately, the Supreme Court's decision today leaves LGBT people in MS in the crosshairs of hate and humiliation, delaying justice and equality.

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.

The Supreme Court is refusing to hear challenges to a MS law that allows businesses and government employees to deny services to LGBT people based on their religious beliefs.

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Section 377 of the IPC refers to "unnatural offences" and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay a fine. "The court has to examine [the] constitutional validity in considering whether the prohibition imposed on two adults accounts for violation of their freedom at the same time legitimising may amount to encouraging immorality", party MP Majeed Memon said.

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

On a related issue, the Supreme Court is due to rule by the end of June whether a Colorado baker was within his constitutional rights to refuse to make a wedding cake for a gay couple on the basis of his conservative Christian beliefs.

"Those who haven't been and won't be harmed by this law shouldn't be allowed to restrict freedom for others by ensuring dissenters are left open to the government discrimination that has already occurred in states without protective laws like this one". It also asked to include them in the OBC quota.