Section 377: Government leaves decision to wisdom of Supreme Court

Supreme Court of India
Supreme Court of India, File Photo

New Delhi, July 11: The Supreme Court on Wednesday continued hearing a bunch of petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre’s plea for a postponement of the proceedings.

Putting the ball in the Apex Court’s arena to decide the matter of the constitutionality of Section377, the central government today said it will not contest the petitions challenging the law which criminalises same-sex relations.

ASG Tushar Mehta told the five-judge constitution bench of SC that the Centre will leave the matter of the constitutionality of Section 377 to be decided by the Court.

Meanwhile, Meneka Guruswamy, a lawyer for one of the petitioners told the court ‘homosexuality doesn’t affect a person’s career and growth. People have cleared civil service examinations, IIT examinations and other top level competitive exams”.

“Lesbian, gay, bisexual and transgender people deserve to be protected by court, constitution and country.Section 377 denies the LGBT community the equal opportunity of participation’, she submitted to the Apex Court.

The bench, however, said it would only examine the “correctness” of its verdict of 2013, which cancelled a Delhi High Court judgment that said the law criminalizing gay sex was “unconstitutional”.

Senior advocate Arvind Datar for petitioners: “The SC judgement on privacy said sexual orientation essential attribute of privacy. That eclipses Section 377 IPC and makes it liable to be struck down.”

Appearing for a petitioner, Arvind Dattar said if a person has a different sexual orientation, it can’t be treated as a crime. This can’t be treated as against the order of nature.

The Centre on Monday had requested the court to adjourn the hearing for four weeks during which it would file its reply to the petitions. The bench, however, refused to defer the hearing and listed it for Tuesday for hearing the petitions challenging section 377 of the IPC, which criminalises unnatural sex between two consenting adults.

A newly re-constituted constitution bench will be headed by Chief Justice Dipak Misra and comprise Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra. “No, no… it will not be adjourned,” the Bench said when Additional Solicitor General Tushar Mehta, representing the Centre, sought its deferment.

Section 377 deals with “unnatural offences,” and holds “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 ten years, and shall also be liable to fine.”

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