Section 377 criminalises sexual acts "against the order of nature" and has undergone many twists and turns ever since the Delhi High Court decriminalised it in 2009.
"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.
It is the "worst" law in the nation, according to some LGBT groups, who were hoping the Supreme Court would strike it down.
The bench was hearing a plea filed by one Navtej Singh Johar seeking to declare section 377 as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex. Unfortunately, the Supreme Court's decision today leaves LGBT people in MS in the crosshairs of hate and humiliation, delaying justice and equality.
Section 377 of IPC - which came into force in 1862 - defines unnatural offences.
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.
"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". It was stated that the protection of sexual orientation lies at the core of the fundamental rights.
"A section of people or individuals who exercise their choice should never remain in a state of fear", the court said, in response to a case lodged by LBGTI activists arguing the ban has put them at constant risk of arrest. A promising sign, the Court also asked the government to respond to a petition from five LGBTQ people who said they live in fear of police due to their identities.
"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 the Centre to include them in the OBC quota.
All India Mahila Congress President Sushmita Dev also welcomed the top court's decision saying,"Everybody has equal right to live life the way they want".