Wednesday, 18 July, 2018

Section 377 Hearing in Supreme Court

KK Venugopal Indian supreme court starts hearing on decriminalising gay sex
Melinda Barton | 11 July, 2018, 16:44

A five-judge bench, headed by Chief Justice Dipak Misra, will hear the petition challenging Section 377 of the Indian Penal Court.

In May, the apex court chose to hear the plea filed by the Indian Institute of Technology's LGBT alumni association, seeking scrapping of Section 377.

The Indian Supreme Court said the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts.

In 2009 the Delhi High Court effectively decriminalised gay sex, saying a ban violated fundamental rights, but the Supreme Court reinstated it in 2013 after religious groups successfully appealed.

The bench, which agreed with the submission of Rohatgi, also said it would examine the fundamental right to life and sexual freedom.

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.

"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 determination of order of nature is not a constant phenomenon.

Once it decriminalises Section 377, "discrimination faced by the LGBT community in employment and in choice of vocation will vanish", said the apex court.

Read Also: Prime Minister Narendra Modi is third most followed leader on Twitter, US President Donald Trump leads The constitution bench today commenced hearing in the matter.

CJI Dipak Misra, in early 2018 chose to pull-out petitions filed over two years ago by renowned dancer Navtej Singh Johar, journalist Sunil Mehra, celebrity chef Ritu Dalmia, historian Aman Nath and businesswoman Ayesha Kapur.

The bench, led by Chief Justice of India Dipak Misra, however, refused and listed it for today.

"Whatever may not be in question may not be decided", Additional Solicitor General Tushar Mehta told the court expressing the apprehension of the Centre.

Emboldened by the historic apex court judgment that declared privacy as a fundamental right in 2017, celebrities and prominent personalities filed a batch of pleas seeking to assert their right and choice of sexual orientation.

"132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution".

"The Petitioners can not overcome a lurking fear that their consensual relationships, even within the privacy of their homes, may invite coercive state action at the hands of a busybody, rival, political party, or any other 3rd party who has no bona fide interest with the private lives of the Petitioners, and is motivated only by malice/prejudice", stated the petition.

The arguments would resume on Wednesday.