Supreme Court hearing on Section 377 to continue today

KK Venugopal

Indian supreme court starts hearing on decriminalising gay sex

While the Centre did not challenge the verdict, a host of petitions were filed in the apex court opposing the High Court judgment.

However, India's struggle against this archaic law dates back to at least a couple of decades when activists and NGOs came together to fight the law that criminalises homosexuality.

The Supreme Court on Wednesday, July 11 continued its hearing on petitions challenging the validity of Section 377 IPC, a colonial-era provision that criminalises private consensual sex between adults.

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. Earlier, on April 27, Ashok Rao Kavi of Humsafar Trust and Arif Jaffar also filed petitions against Section 377.

The gay community was emboldened previous year when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy.

In the judgement on privacy as a fundamental right, the apex court's nine-judge bench had said the right to privacy can not be denied to members of the LGBT community merely because they have unconventional sexual orientation and form a miniscule fraction of the over 1.32 billion Indian population.

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Justice Chandrachud addressed Mr. Mehta to say that the prerogative of this hearing was to understand the nature of a relationship and bringing it under the protection of Article 21 (fundamental right to life) of the Constitution. "We hope to get a positive outcome this time around". He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution.

"I want to be able to make sure that every citizen in this country has the right to choose their sexual orientation as a consenting adult". Like Balachandra, other petitioners, as well as members from Pravritti, feel that this time, positive outcomes await. Additionally, the paradox lies in the fact that people belonging to the LGBTQ community have been routinely denied personal liberty even after the Supreme Court in 2017 passed the landmark judgement that made the right to privacy a fundamental right.

Justice Chandrachud said gender and orientation were overlapping concepts. The Home Ministry has filed an affidavit elucidating the government's stand on the case.

The law known as Section 377 - introduced more than a century ago under British rule - bans all sexual activity outside heterosexual sex as "against the order of nature".

Gay sex is punishable by up to 10 years in jail, but enforcement is uncommon. "This Hon'ble Court has upheld the right to choice of conjugal partner under Article 21 of the Constitution of India", the first plea, filed by the five personalities, read.

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