NEW DELHI: Sexual orientation is integral to individual identity and no person can be punished for exercising their sexual orientation, petitioners on Tuesday began their arguments before a five-judge constitution bench in the Supreme Court which began hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender.
A five-judge constitution bench headed by Chief Justice Dipak Misra said it will also examine the correctness of its 2013 verdict that had set aside the Delhi High Court judgement decriminalising gay sex.
Senior advocate Mukul Rohtagi appearing for Hotelier Keshav Suri and others began his argument by stating, "Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people."
The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.
During the hearing today, the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said it would examine the constitutional validity of section 377 of the IPC and the fundamental rights of the LGBTQ (Lesbians, Gay, Bisexual, Transgender, Queer) community.
"The issue of sexual oron and gender are different, this case deals only with sexual orientation and has nothing to do with gender. This is not a matter of choice but it is something inmate and we are born with it," Rohtagi told the bench while making reference to Shikhandi of Mahabharata.
"As society changes, values change, what is moral 160 years ago might not be moral today. A law valid for 50 years can become invalid with the passage of time backs of societal changes," Rohtagi said.
He added that, "The right to have sexual freedom should be examined in view of the nine-judge bench verdict on privacy which had said that the right to privacy cannot be denied to members of the LGBT community merely because they have unconventional sexual orientation and form a minuscule fraction of the over 1.32 billion Indian population."
There are 6 substantive writ petitions and multiple intervention application against the Section 377 of IPC. The centre is yet to reveal its stand on the issue, while it has so far supported the law, this time it is yet to file its response, which has been sought by the court. Additional Solicitor General Tushar Mehta told the bench, "Our stand is yet to be made."
Senior advocate Arvind Datar appearing for petitioners in the case said, "Right to my sexual orientation is protected under right to life.
Right to sexual orientation can't be exercise of I don't have right to choose my partner. Sexual orientation and gender identity are both equal facts of one's natural orientation." This led Justice Chandrachud to intervene, "In Hadiya judgement, we recognised the right to choose a partner to come under Article 21, so a partner can also be a same-sex partner."
It was on the petition filed by the Naaz Foundation that the Delhi High Court had decriminalised section 377 of the IPC, which was challenged in the apex court by some individuals and religious organisations. The hearing will continue Wednesday as well.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal inter course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.