Published: Wed, July 11, 2018
Global News | By Blake Casey

SC defines limits of gay law case

SC defines limits of gay law case

The Supreme Court on Wednesday will continue hearing a batch of petitions against Section 377 of the Indian Penal Code (IPC), which criminalises homosexual activities. During the hearing on Tuesday, before a bench of CJI Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, clear signals emerged in favour of decriminalising Section 377, which the Delhi high court had in 2009 ruled in favour of, only to be reversed by a two-judge SC bench in 2013 in the Suresh Kumar Koushal vs Naz Foundation case.

Later in June 2016 five LGBT community members- Bharatnatyam exponent Navtej Singh Johar, journalist Sunil Mehra, chef, Ritu Dalmia, businesswoman Ayesha Kapur and hotelier Aman Nath filed a petition challenging section 377. Earlier, on April 27, Ashok Rao Kavi of Humsafar Trust and Arif Jaffar also filed petitions against Section 377.

The campaign for decriminalising gay sex also been bolstered by a supreme court ruling in August a year ago, which ruled that privacy, including a person's sexuality, was a fundamental right.

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.

In last year's judgement on Right to Privacy, the Supreme Court said that rights of the lesbian, gay, bisexual and transgender population are real rights founded in the Constitution.

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Airing the government's concerns, Mehta referred to Justice Chandrachud's observation made during the course of the hearing on Tuesday that in Hadiya judgement, that "we have already decided that the right to choose a partner is a fundamental right". "We hope to get a positive outcome this time around". A person below 18 would be presumed not to be able to consent to a sexual act.

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. Sexual orientation is an essential component of identity.

Justice Chandrachud said gender and orientation were overlapping concepts.

Dating back to the British era of mid-1800's, this colonial legacy was passed onto India by our colonisers.

"132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It further terms the coitus between two people of the same sex to be an "unnatural offence" and states that people found guilty can be imprisoned for up to 10 years. We are examining whether the relationship between two consenting adults is itself a manifestation of Article 21.

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