India’s Supreme Court hears arguments against law criminalizing homosexuality

11 Julio, 2018, 16:42 | Author: Kelly Blake
  • Gay sex has been illegal in India since 1861

However, it urged the five-judge constitution bench of Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, A.M. Khanwilkar, DY Chandrachud and Indu Malhotra that they should confine to deciding the challenge to the law, without any scope that may give rise to members of the LGBT community claiming civil rights including right to property, inheritance marriage, adoption and other rights. The Centre on Monday requested for time to file its reposes in the case.

He said he wanted to clarify that since he had appeared in the curative petition filed against the 2013 verdict re-criminalising section 377 of the IPC, he was not in a position to take up the stand of the government.

He also questioned the judgment in the Suresh Kumar Kaushal vs Naz Foundation case in which the Supreme Court had upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.

The Indian homosexuality law, commonly known as 'Section 377, ' prohibits "carnal intercourse against the order of nature with any man, woman or animal" - which is widely interpreted to refer to homosexual sex.

Petitioners Anwesh Pokkuluri, Romel Barel and Krishna Reddy M outside the Supreme Court on Tuesday. Was it the order of nature in 1860?

Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur.

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"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 question here is whether Section 377 is ultra vires (unconstitutional) or not".

The Chief Justice of India (CJI)-led five-judge bench then said it intends 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 campaign for decriminalising gay sex also been bolstered by a supreme court ruling in August previous year, which ruled that privacy, including a person's sexuality, was a fundamental right. "Today we are focusing on whether 377 is ultra vires or not", he told Rohatgi. Counsel for the petitioners will continue with their submissions today.

"Section 377 criminalises a core part of a person's identity exclusively on account of his or her sexuality".

He argued that the LGBT community accounted for a large section of the country's population whose right of sexual orientation was protected under Article 21 that relates to life and personal liberty. A person below 18 would be presumed not to be able to consent to a sexual act. "The law recognizes petitioners only as criminals and reduces their love to a crime", states the petition.

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