Centre leaves it to the wisdom of SC to decide validity of Section 377

A five-judge constitution bench headed by Chief Justice Dipak Misra, which is hearing a batch of petitions challenging its 2013 verdict had re-criminalised homosexuality making it an offence.

Published: 11th July 2018 01:05 PM  |   Last Updated: 11th July 2018 09:25 PM   |  A+A-


Image for representational purpose (EPS File | Ashwin Prasath)

By Express News Service

NEW DELHI: Centre on Wednesday clarified its stand before a five-judge constitution bench and put onus of deciding the fate of Section 377, which criminalises sexual activities against the order of nature.

Additional Solicitor General Tushar Mehta submitted before a Constitution Bench headed by Chief Justice Dipak Misra that by freedom of choosing a partner, a person should not be allowed to choose his sister as his partner as such an act would go against the tenets of Hindu law.

However, the Centre revealed that should the Court delve into issues other than those specified above, it will file a detailed affidavit with respect to those issues but Chief Justice observed, "We intend to rule, subject to arguments, that two consenting adults even if engaged in unnatural sex will not be liable for prosecution for any offence."

The court had already made it clear that it was not confining its ambit to LGBTQ or sexual orientation, it is looking into the aspect of two consenting adults who will not be liable for criminal action for their relationship.

The hearings in the challenge to Section 377 of IPC continued today in the Supreme Court for the second successive day when advocate Menaka Guruswamy, who appeared on behalf of 20 students of IIT who had petitioned the court told the bench, "Section 377 is a colonial legacy and it violates Article 15 because it discriminates on the basis of sex."

Menaka stresses how section 377 is affecting lives of LGBT people and is making their lives miserable and said, "This section denies equal participation to LGBT community in profession." This led CJI to question, "Is there any rule that prevents homosexuals from availing equal opportunities." Menaka responded by stating, "It has chilling effect."

"Once the section 377 is decriminalises then the discrimination faced by LGBT community in employment or choosing any profession will vanish," the bench opined adding the community members can then freely contest elections without inhibitions.

Menaka also talked about some bright rivals who have come to the apex court to fight section 377 and end its dogma over the lives of the community. Sunil Mehra clears the IAS and does not go for it. He fears of the stigma.

Senior advocate Anand Grover appearing for petitioner Arif Jafar said, "This case is not only about decriminalisation of section 377, it is about constitutional values."

Referring to NALSA judgement, Grover said, "This judgment give right to an individual to identify gender. LGBT community is sufferm blackmail and extortion."

On this CJI remarked, "Consensual part is facet of choice. Curability cannot be imposed in natural aspects." The arguments will continue on Thursday.

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