Published: Wed, July 11, 2018
Global | By Marsha Munoz

Centre’s change in stance on Section 377 of IPC

Centre’s change in stance on Section 377 of IPC

The court however said that it would not adjourn the hearing that has been scheduled for Tuesday.

Attorney General K K Venugopal today recused himself from appearing in the hearing before the Supreme Court on a clutch of pleas seeking decriminalisation of consensual gay sex saying he had represented one of the petitioners when a curative petition was filed in the matter.

"In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice". "We got calls from parents, concerned about what would happen to their children". We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. A section of society must not live in a state of fear simply because of the choices they make, Chief Justice of India Dipak Misra had observed.

It, however, said the court should specify that the right to choose a partner should not extend to perversions like incest.

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In a sharp retort, Justice D.Y. Chandrachud said the Bench was not here to adjudicate over any "kinky notions" of sexual orientation.

Section 377 criminalises the very existence of LGBT persons by criminalising their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender.

After the apex court had set aside the Delhi High Court's 2009 judgement decriminalising sex between consenting adults of the same sex by holding Section 377 of IPC as "illegal", review petitions were filed.

Justice Chandrachud said, "Mr. Mehta, we are not even on the sexual act". "You have an orientation and you exercise it if we eventually uphold your plea". It is not a natural thing and we can not treat it as normal.

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The reference order, the CJI pointed out, was on whether Section 377 should be unconstitutional if a sexual act is between two consenting adults.

He also questioned the judgment in the Suresh Kumar Kaushal vs Naz Foundation case in which the Supreme Court had upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.

Rohatgi told the bench that since the Centre had not yet made its stand clear on the 2013 ruling, the court should quash the provision.

The Indian government has offered mixed messages on the issue in the past, with some ministers speaking out in favor of Section 377, only to be contradicted by others.

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The gay community was emboldened past year when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy. "Laws made 50 years ago can become invalid over time", he submitted. "It's innate and inborn", he said.

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