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. Later, in 2012, the Supreme Court overturned the decision.
By rejecting the cases, the top court leaves in place a federal appeals court decision that allowed the 2016 law to take effect. 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". Moreover, the law also mentions that "penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section". It was also on the side of respecting the freedom of individuals to their sexual orientation.
"Congress welcomes Supreme Court's decision", All India Mahila Congress President Sushmita Dev said soon after a bench headed by Chief Justice Dipak Misra referred a petition filed by five LGBT citizens seeking review of its 2013 order.
Most recently, it was on 24 August 2017 that the Supreme Court ruled that the "Right to Privacy" was a fundamental right, called for equality and condemned discrimination. The LGBT community has argued the ban undermines fundamental rights as it fails to protect them. The SC decision will definitely strengthen arguments for decriminalisation of homosexuality. Societal morality changes with time, law walks with life. 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.
"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 constitution".
In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a "third gender" along with male and female. It also includes a maximum punishment of life imprisonment.
"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".