Section 377 Hearing : Homosexuality not an aberration, observes Supreme Court

Justice Indu Malhotra, part of five-judge SC bench hearing petitions for decriminalisation of Section377, said because of sexual orientation of LGBT community members and their sexual orientation, they have been discriminated in availing health care in semi-urban and rural areas.
Supreme Court of India
Supreme Court of India, File Photo

New Delhi, July 12:The Supreme Court on Thursday resumed hearing a bunch of petitions challenging the validity of Section 377 of the Indian Penal Code (IPC) that criminalises homosexuality.

Justice Indu Malhotra, part of five-judge SC bench hearing petitions for decriminalisation of Section377, said because of sexual orientation of LGBT community members and their sexual orientation, they have been discriminated in availing health care in semi-urban and rural areas.

Justice Indu Malhotra, also observed ‘because of family and societal pressures, they(LGBT community) are forced to marry the opposite sex and it leads to bi-sexuality and mental trauma.’

The Centre on Tuesday said it would not contest the petitions and left the decision to the “wisdom” of the court.

The Central government has opposed a plea for decriminalising adultery in India, saying striking down Section 497 of the Indian Penal Code which penalises only men who are found engaging in adultery, would be “detrimental” to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.

In the last two days of the hearing, the petitioners have argued that 377 is an outcome of Victorian morality and should be struck down as values change along with society. The court is only hearing the issue of gay sex and not that of marriage in the LGBTQ (lesbian, gay, bisexual, transgender and queer) community or inheritance in live-in relationships. Read highlights from the first two days of the hearing here.

As per the law, there are provisions which provide for punishment only to a man for having extra-martial sexual relation with the wife of another man, although women are immune from such punishment.

The government, in an affidavit filed before the apex court, has stated that Section 497 “supports, safeguards and protects the institution of marriage”.

“It is submitted that striking down section 497 of IPC and Section 198(2) Cr.P.C. will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.

“The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society,” read the affidavit.

The Ministry of Home Affairs in its affidavit further stated that the Law Commission was currently examining the issues, has identified certain focus areas and formed sub groups to deliberate on such areas, it added.

The government has filed the affidavit on a plea which pointed out that only men can be punished for the offence of adultery for having consensual sex with the wife of another man.

The plea filed by Joseph Shine, an expatriate Indian living in Italy, contended that Section 497 was unconstitutional on the grounds that it discriminates against men and added that “when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability.”

The Home Ministry sought dismissal of the plea and referred to Justice Malimath Committee report on reforms in the criminal justice system which had suggested making section 497 gender-neutral.

After the Parliamentary Standing Committee on Home Affairs took note of the need for criminal justice reforms, the Law Commission is also considering the recommendation to make Section 497 gender neutral, it added.

“The decriminalisation of adultery will result in weakening the sanctity of a marital bond and will result in its laxity.”

The PIL challenging the constitutionality of such adultery laws is currently pending before a Constitution Bench of the Supreme Court.

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