India's top court reviews British-era ban on homosexuality

Wednesday, 11 Jul, 2018

The Supreme Court will on Tuesday begin to hear arguments on a batch of petitions demanding the removal of Section 377 from the Indian Penal Code. A five-judge Bench headed by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra are listening to the pleas.

The apex court had Monday refused to defer the hearing after the Centre sought more time to file replies on the PILs.

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The Indian homosexuality law, commonly known as 'Section 377, ' prohibits "carnal intercourse against the order of nature with any man, woman or animal" - which is widely interpreted to refer to homosexual sex. Section 377 IPC denies LGBT persons their rights to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution of India. We can not celebrate it.

"Rights that emanate for gender are much broader than rights of sexual minorities", he said, asking the petitioners to argue on matters related to inheritance and other rights if Section 377 is struck down. A section of society must not live in a state of fear simply because of the choices they make, Chief Justice of India Dipak Misra had observed.

Appearing for the Centre, Additional Solicitor General Tushar Mehta on Tuesday pleaded that the petitioners should restrict their arguments only to constitutional validity of Section 377.

The court said it will examine if the fundamental right to life includes sexual freedom.

Justice Chandrachud addressed Mr. Mehta to say that the prerogative of this hearing was to understand the nature of a relationship and bringing it under the protection of Article 21 (fundamental right to life) of the Constitution. "Today we are focusing on whether 377 is ultra vires or not", he told Rohatgi.

I respectfully submit that I am filing this Affidavit to respectfully place on record the stand of the Union of India with regard to the subject matter of the present petitions. 20 of them had written their personal encounters, the key highlights of which pointed to one factor- discrimination based on their sexual orientation.

In 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by an apex court bench. "One can not judge these issues in vacuum", the bench said.

And just a year ago, the court ruled that privacy is a fundamental right guaranteed by India's constitution.

In the writ petitions too, there is a challenge to the 2013 judgement of the apex court by which homosexuality was held as a criminal offence.

The hearing will resume on Wednesday.