Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.
“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”
Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?
Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choice. It is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”
He referred to the following cases in support of his contentions which were:
- NALSA v. Union of India, (2014) 5 SCC 438
- Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762
- Lawrence v. State of Texas, 2003 SCC OnLine US SC 73
- Shafin Jahan v. Asokan K.M. popularly known as the “Hadiya Case”, 2018 SCC OnLine SC 343
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.
Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.
The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.
[Source: The Hindu]