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

Remigio Civitarese
Luglio 11, 2018

The observation of the court, which is hearing a bunch of petitions calling for decriminalization of gay sex and scrapping of the relevant law under Section 377, came after the government said it would leave the decision to the five-judge constitution bench.

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 are (debating) on whether the relationship between two adults is itself a manifestation of Article 21 of the Constitution", he 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. Was it the order of nature in 1860?

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.

During the pendency of the curative petitions, the plea was made that an open court hearing should be granted and after the apex court agreed to it, several fresh writ petitions were filed seeking decriminalising of Section 377.

Mr. Mehta made it clear that if the court ventures into aspects like same sex marriage, etc, the Centre would respond with a detailed affidavit showing "legitimate State interest" after "wider consultations in the government".

Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not".

In 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by an apex court bench.

And just past year, the court ruled that privacy is a fundamental right guaranteed by India's constitution. This comes after the Supreme Court on July 9 rejected Centre's plea to adjourn the hearing on Section 377.

The debate to decriminalise homosexuality got a shot in the arm when the apex court unanimously declared privacy as a fundamental right on 25 August 2017. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not". Counsel for the petitioners will continue with their submissions today.

However, in 2013, the supreme court reversed the hight court ruling - making gay sex illegal again - and outraging LGBT+ rights campaigners across the world. "There is an element of gender in sexual orientation as well".

The petitioners have further stated they are unable to form professional associations with other similarly placed persons to voice their concerns about discrimination which they may face in places of employment, education, or otherwise.

The arguments would resume on Wednesday.

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