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Centre’s change in stance on Section 377 of IPC
11 July 2018, 04:43 | Glen Norman
Governance Constitutionality of 377 first personal rights later CJI says on rights of homosexuals
Ritika Jain 10 July 2018
The Supreme Court on Tuesday said it would for now examine only the constitutional validity of the penal code's Section 377 that criminalises unnatural sex without getting into issues like inheritance and alimony that might arise if the law is eventually scrapped.
The bench, which also included Justices R.F. Nariman, A.M. Khanwilkar and Indu Malhotra, on Tuesday commenced hearing a batch of petitions and cross-petitions for and against the section.
During the hearing yesterday, the apex court had observed that colonial laws like Section 377 will have to pass the rigours of the Constitution.
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Section 377 of the penal code, a relic from 1860s British legislation, bans gay acts as "carnal intercourse against the order of nature" and allows for jail terms of up to life.
Another member of Pravritti said that a large number of their members have been involved in the ongoing struggle of decriminalising section 377. They should get jobs on merit, but we can not allow them to celebrate.
"Whatever may not be in question may not be decided", Additional Solicitor General Tushar Mehta told the court expressing the apprehension of the Centre. "Those are individual issues we can not pre-judge now", Chief Justice of India (CJI) Dipak Misra said.
A five-judge Constitution bench will hear six petitions and interventions filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups. 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.
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ASG Mehta said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not".
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. "Those are individual issues we can not pre-judge now", said the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while outlining the broad issues which would be open for arguments.
The campaign for decriminalising gay sex also been bolstered by a supreme court ruling in August a year ago, which ruled that privacy, including a person's sexuality, was a fundamental right.
"Section 377 of the IPC criminalises a core part of a person's identity exclusively on account of his or her sexuality and thus violates Article 21 of the Constitution".
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