India’s Supreme Court hears arguments against law criminalizing homosexuality

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"When we accept the proposition, the right to choose a partner with a particular sexual orientation is also a right under Article 21", the judge said.

Section 377 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. Was it the order of nature in 1860?

Another member of Pravritti said that a large number of their members have been involved in the ongoing struggle of decriminalising section 377.

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.

Even ruling party leaders have no uniform opinion on Section 377 of IPC.


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

Subsequently in December 2013, an Apex Court bench in the Kaushal case, reversed the High Court verdict and upheld the constitutional validity of Section 377.

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 Centre requested the court to adjourn the hearing and sought four weeks to file its reply to the petitions.

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


The bench on Monday had rejected the Centre's plea to defer the hearing.

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". On the second day of the hearing of the petitions challenging the provision, Additional Solicitor General Tushar Mehta revealed that the Centre will not contest the challenge to Section 377.

Senior advocate Mukul Rohatgi, who appeared for some gay rights activists, said there was a difference between gender orientation and sexual orientation.

They have also argued that right to sexuality and the right to choice of a sexual partner are fundamental rights protected under Article 21 of the Constitution and have questioned whether section 377 is unconstitutional and violative of the Constitution and hence be struck down. Counsel for the petitioners will continue with their submissions today.

Globally, 72 countries ─ including Pakistan ─ criminalise same-sex relationships, according to a 2017 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association.


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