Supreme Court to hear tomorrow pleas seeking to decriminalise homosexuality
11 July, 2018, 16:42 | Author: Wade Massey
The new five-judge bench will be headed by Chief Justice Dipak Misra and would comprise justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. During the previous hearing on Monday, a five-judge Constitutional bench had refused to adjourn the hearing after the Centre sought more time to file its reply.
In 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench.
The debate to decriminalise homosexuality got a shot in the arm when the apex court unanimously declared privacy as a fundamental right on 25 August 2017.
Section 377 of the penal code, a relic from 1860s British legislation, bans gay acts as "carnal intercourse against the order of nature" and allows for jail terms of up to life, although prosecutions are rare.
Swamy further said that if the top court ruled homosexuality to be normal and a free choice, the government should constitute a seven-judge bench or a nine-judge bench to review it.
"What is the order of nature in 1860 can't be the order of nature today".
Justice Chandrachud referred to the Hadiya case during the course of the hearing, pointing out that the court had earlier this year upheld the right of the Kerala woman who had converted to Islam to choose her partner.
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Sangeet Natak Akademi Award-winning Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, business executive Ayesha Kapur, and Neemrana Hotels co-founder Aman Nath filed a plea in June 2016, seeking to quash the Colonial-era law.
"We don't want a situation where two homosexuals enjoying a walk on Marine Drive (a Mumbai boulevard) should be disturbed by the police and charged under Section 377", Justice J. Chandrachud, who is a part of the bench hearing the matter, was quoted as saying by the channel. The Central government is represented by Additional Solicitor General Tushar Mehta.
Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not". "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not".
As per the petitioners, the continuance of Section 377 ensures that the Constitutional guarantees of equality, fraternity, dignity, life and liberty, are not extended to them.
"132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It denies LGBT persons, their right to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution. "There is an element of gender in sexual orientation as well. The law recognizes petitioners only as criminals and reduces their love to a crime", states the petition.
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