Monday, 24 September, 2018


Supreme Court to hear tomorrow pleas seeking to decriminalise homosexuality

KK Venugopal Supreme Court to hear tomorrow pleas seeking to decriminalise homosexuality
Bennie Garza | 11 July, 2018, 18:37

Centre today put the onus on the Supreme Court to decide on the criminality of the Section 377 of the Indian Penal Code (IPC), which criminalises consensual gay sex.

The matter is being heard by a five-judge constitution bench led by Chief Justice of India Dipak Misra and comprising Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

"We leave to the wisdom of the court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults", additional solicitor general Tushar Mehta, representing the centre, told the bench at the outset of the crucial hearing which entered the second day.

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At a time when countries all over the world were passing progressive laws that upheld the rights of the members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, the Supreme Court in its 2013 judgement quashed the aspirations of many who have been through hell.

Appearing for the petitioners, senior counsel Mukul Rohatgi argued for scrapping of Section 377 which criminalises homosexuality and punishes "carnal intercourse against the order of nature with any man, woman or animal", with imprisonment for life, or with imprisonment for a term extending to ten years. He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. "I am not appearing now as the Attorney General", he told.

Ahead of the Supreme Court hearing on petitions filed against Section 377 of the Indian Penal Code, Bharatiya Janata Party (BJP) leader Subramanian Swamy on Tuesday opined that homosexuality was a danger to national security. "Those are individual issues we can not pre-judge now", Chief Justice of India (CJI) Dipak Misra said.

"It affects the basic constitutional and human rights of a large section of society, called the sexual minority", the court said about the 2013 verdict. The court ruled privacy was a fundamental right of all Indians, adding that sexual orientation was an essential attribute of privacy. 20 of them had written their personal encounters, the key highlights of which pointed to one factor- discrimination based on their sexual orientation.

The gay community was emboldened past year when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy.

He also questioned the judgment in the Suresh Kumar Kaushal vs Naz Foundation case in which the Supreme Court had upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.

The hearing will resume on Wednesday.

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