Published: Wed, July 11, 2018
People | By Leon Thompson

India’s supreme court begins landmark hearing for the decriminalisation of gay sex

India’s supreme court begins landmark hearing for the decriminalisation of gay sex

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 bench comprises Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

"My choice of partner should not be my sister. prohibited under Hindu law". All these factors, coupled with the fact that Justice D Y Chandrachud was the one who delivered the main judgement on the right to privacy and has been vocal about LGBTQ rights as well, has instilled new confidence among the members of the community.

The court however said that it would not adjourn the hearing that has been scheduled for Tuesday. The CJI said, "Live-streaming and recording of court proceedings will help the public know instantly about the important developments in the court".

"Section 377 criminalises a core part of a person's identity exclusively on account of his or her sexuality".

Justice Misra agreed with Mehta. This, petitioners claim is a direct violation of Articles 14, 15, 16, 19 and 21 of the Constitution which guaranty Indian citizens various fundamental rights like freedom of expression, equal protection of the law, equality of opportunity and personal liberty. "We are on the nature of the relationship and not going to talk on marriage, etc". They inhere in the right to life.

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"We don't want a situation where two homosexuals enjoying a walk on Marine Drive (a Mumbai boulevard) should be disturbed by the police and charged under Section 377", Justice J. Chandrachud, who is a part of the bench hearing the matter, was quoted as saying by the channel.

Even ruling party leaders have no uniform opinion on Section 377 of IPC. Tushar Mehta, appearing for the Centre, told the apex court, "We leave it to the wisdom of the court".

It was on the petition filed by the Naaz Foundation that the Delhi High Court had decriminalised section 377 of the IPC, which was challenged in the apex court by some individuals and religious organisations. Considering the issues, if any, if permitted to be raised beyond the scope of the reference, the same would require a detailed counter affidavit showing legitimate state interest on various other issues.

Advocate Menaka Guruswamy made an emotive submission about the constant battle faced by the community against stigma and a draconian law.

"How strongly must you love knowing you are unconvicted felons? It will no longer be seen as moral turpitude". "Whether a pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people should remain in existence", asked Rohatgi. Any law which criminalised such a relationship was an example of social disdain, he noted.

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