Wednesday, 24 July, 2019

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

LGBT+ rights campaigners at a Pride parade in Chennai LGBT+ rights campaigners at a Pride parade in Chennai
Deanna Wagner | 11 July, 2018, 16:44

The petitioners contend that their rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed by the Constitution, were infringed by Section 377.

The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi high court judgement that had held as unconstitutional Section 377 of the Indian Penal Code, which makes such actions between two consenting adults of same sex as a penal offence.

Chief Justice of India Dipak Misra today indicated that the 150-year-old ban on gay sex may soon be gone. "We got calls from parents, concerned about what would happen to their children". They should get jobs on merit, but we can not allow them to celebrate.

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".

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.

He argued that the LGBT community accounted for a large section of the country's population whose right of sexual orientation was protected under Article 21 that relates to life and personal liberty.

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. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not". "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. It is not a natural thing and we can not treat it as normal. Even the Centre had at that time favoured retention of the provision in the IPC as penal offence.

Liu Xia, wife of late China dissident Liu Xiaobo, left for Berlin
Mr Liu died of liver cancer last July while under government custody, prompting fresh worldwide calls for his wife's release. Chinese officials put Liu Xia under house arrest days after the Nobel Committee awarded Liu Xiaobo the Peace Prize in 2010.

The change in Centre stand came a year after the apex court declared Right to Privacy as a fundamental right.

Clarifying his observation, Justice Chandrachud said they were not going to decide "kinky issues".

"Right to choose my partner is part of my fundamental right to privacy", Datar had submitted.

"We are (debating) on whether the relationship between two adults is itself a manifestation of Article 21 of the Constitution", he said.

Rohatgi submitted that Section 377 was a colonial-era law that has become irrelevant. "It's innate and inborn", he said.

The arguments would resume on Wednesday.