CHENNAI: Why should not homosexuals or lesbians be given a separate status to safeguard their rights? When more than 30 countries, including the conservative Ireland which decriminalised homosexuality and legalised gay marriages by way of referendum by getting 62.07 per cent votes in favour, why should not the Indian Government follow suit?
These questions were raised not by the organisations representing those from alternate sexuality groups, but by Justice N Kirubakaran of the Madras High Court recently. The judge noted that it had been reported in newspapers that same sex relationship had become common nowadays.
In view of the existing circumstances, it would be appropriate to make the Indian government, represented by its Health Secretary, Law Secretary and the Law Commission in New Delhi as parties in similar matters pending before the High Court, the judge observed, and accordingly impleaded them and directed them to submit their views on the questions he raised.
Justice Kirubakaran was dealing with two cases in which either of the spouses was gay or lesbian. As there was no hope or chance of uniting them, the judge granted mutual divorce. However, he kept the matter alive to find a permanent remedy.
He didn’t stop with those questions. Among the questions the judge raised for answers from the Union government included: when heterosexual orientation exhibited by a majority persons is accepted by all, why not the sexual orientation of a section of the people LGBT, (Lesbians, Gays, Bisexuals, Transgenders) be recognised as they are born with different expression of human sexuality? Can LGBT be considered offenders for exhibiting their natural sexual orientation? Is it not a fact that same sex relationship has become a problem to the institution of marriage nowadays as alleged in the cases on hand?
Is it not essential to decriminalize homosex and recognise the rights of LGBT to prevent homosexuals getting married to heterosexual persons? Is there any scientific survey by the Centre to find out the number of gays and lesbians in the country? And, if the survey was already done, what is the population of gays and lesbians in the country?
All eyes on Tuesday Order
The Hearing
Petitions against an order re-criminalizing homosexuality to come up for hearing before a bench led by CJI T S Thakur on Tuesday. Hearing will happen in an open court. Petitioners say the SC failed to take note of the effect of an amendment, made in the offence of rape under Section 375 of the IPC, on Section 377
The Amendment
Criminal Law (Amendment) Act, 2013, Section 375, prohibits both penile, vaginal and penile-non vaginal sexual acts between man and woman, without consent. By implication, such sexual acts between man and woman, which are consensual, are not criminalized anymore
The Contention
Consensual penile non-vaginal acts in a heterosexual context would be out of the ambit of Section 377. Otherwise the amendment made in Section 375 would become meaningless
What’s a Curative Petition?
It is the last judicial resort for redressing grievances, which are normally decided by judges in-chamber