Section 377: Will SC scrap the criminalisation of homosexuality?

  • Section 377: Will SC scrap the criminalisation of homosexuality?

Section 377: Will SC scrap the criminalisation of homosexuality?

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 Supreme Court in 2013 had set aside the Delhi High Court's 2009 verdict de-criminalising consensual gay sex among adults after which review petition was filed and was later dismissed.

Chief Justice of India Dipak Misra today indicated that the 150-year-old ban on gay sex may soon be gone. We can not celebrate it. She feels love can't be differentiated on the basis of sex and a law has no right to put two people apart just because they see it as an "offence". "I am not appearing now as the Attorney General", he told.

While the Centre did not challenge the verdict, a host of petitions were filed in the apex court opposing the High Court judgment.

The plea is being heard by a five-judge Bench headed by Chief Justice of India, Dipak Misra. It denies LGBT persons, their right 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. 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. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not". "In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same with giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice", the Centre's affidavit said. "We can not have an advanced ruling".

Rohatgi told the bench that since the Centre had not yet made its stand clear on the 2013 ruling, the court should quash the provision.

"The SC should not rule on any other issue as it could have far reaching consequences for future", said Mehta.

The campaign for decriminalising gay sex also been bolstered by a supreme court ruling in August previous year, which ruled that privacy, including a person's sexuality, was a fundamental right. The petitioners, also comprising members of LGBT community, contend that "right to sexuality" and "right to choice of a sexual partner" are fundamental rights protected under Article 21 of the Constitution. "Moreover, homosexuality is not a disease".

When the hearing was about to commence on the batch of writ petitions, an advocate appearing for NGO Naaz Foundation, which was the first petitioner to approach the Delhi High Court in 2001 on the issue, sought permission to intervene.

The hearing will resume on Wednesday.