Section 377: Government leaves decision to the wisdom of the Supreme Court

11 Juillet, 2018, 16:41 | Auteur: Anatole Charbonneau
  • Gay sex has been illegal in India since 1861

The Supreme Court on Wednesday continued hearing a batch of petitions against Section 377 of the Indian Penal Code (IPC), which criminalises homosexual activities. A five-judge Bench headed by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra are listening to the pleas.

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

The Supreme Court Tuesday commenced a crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender. The determination of order of nature is not a constant phenomenon.

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.

However, the Centre on Tuesday made clear that the court should decide only whether Section 377 of the Indian Penal Code (IPC) needed to be decriminalised and no other issue.

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

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Chief Justice of India Dipak Misra today indicated that the 150-year-old ban on gay sex may soon be gone.

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 Delhi High Court effectively decriminalized gay sex in 2009, but the Supreme Court reinstated legal sanctions four years later after a successful appeal by religious groups.

The court said, the matter has been pending for a while and the Centre should have filed its response by now.

Anwesh Pokkuluri, along with 19 others who are present and former students of IITs across the country, had moved the Supreme Court in May which sought to challenge the constitutional validity of section 377.

In May, the apex court chose to hear the plea filed by Indian Institute of Technology's LGBT alumni association seeking scrapping of Section 377 of the IPC. "Today we are focusing on whether 377 is ultra vires or not", he told Rohatgi. 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. 20 of them had written their personal encounters, the key highlights of which pointed to one factor- discrimination based on their sexual orientation.

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