Section 377: Will SC scrap the criminalisation of homosexuality?


The hearings in the challenge to Section 377 of the Indian Penal Code continued today in the Supreme Court for the second successive day.

Additional Solicitor General Tushar Mehta submitted before a Constitution Bench led by Chief Justice of India (CJI) Dipak Misra that by freedom of choosing a partner, a person should not be allowed to choose his sister as his partner. The Centre on Monday requested for time to file its reposes in the case.

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Section 377 of the IPC refers to "unnatural offences" and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

"The question here is whether Section 377 is ultra vires (unconstitutional) or not". We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc.

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".

When the CJI said "we may begin this experiment from hear, the A-G K.K. Venugopal agreed and said the experiment must start soon from the CJI's court and depending upon its functioning for a month, it can be extended to other court halls in the apex court". Additionally, the paradox lies in the fact that people belonging to the LGBTQ community have been routinely denied personal liberty even after the Supreme Court in 2017 passed the landmark judgement that made the right to privacy a fundamental right.

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Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not". It was outrage over that ruling which opened the floodgates to numerous eminent Indians coming out openly - people who had previously kept their sexual orientation resolutely private. "Today we are focusing on whether 377 is ultra vires or not", he told Rohatgi.

The bench said the curative petitions filed by it has a limited scope and would have to be heard by some other bench.

The Delhi High Court effectively decriminalized gay sex in 2009, but the Supreme Court reinstated legal sanctions four years later after a successful appeal by religious groups.

"I am not appearing in the matter as I had appeared in the curative petition".

In a short affidavit, the government told the court that it should decide only whether Section IPC 377 needed to be criminalised and no other issue.

The hearing will resume on Wednesday.