Indian supreme court starts hearing on decriminalising gay sex

Evarado Alatorre
Julio 11, 2018

Referring to its December 2013 verdict that overturned the 2009 Delhi high court order that decriminalised gay sex, the apex court admitted that its decision needed to be reconsidered and referred the matter to a larger bench. "Those are individual issues we can not pre-judge now", Chief Justice of India (CJI) Dipak Misra said. Let us get out of this maze. We can not celebrate it.

He further observed, "It should not come to a situation where two homosexuals enjoying a walk on the Marine Drive be distrubed by the police. we want to protect the relationship".

Mr. Mehta made it clear that if the court ventures into aspects like same sex marriage, etc, the Centre would respond with a detailed affidavit showing "legitimate State interest" after "wider consultations in the government".

The matter is being heard by a Constitution Bench of Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Ahead of the Supreme Court hearing on petitions filed against Section 377 of the Indian Penal Code, Bharatiya Janata Party (BJP) leader Subramanian Swamy on Tuesday opined that homosexuality was a danger to national security.

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They have also argued that right to sexuality and the right to choice of a sexual partner are fundamental rights protected under Article 21 of the Constitution and have questioned whether section 377 is unconstitutional and violative of the Constitution and hence be struck down. "There is an element of gender in sexual orientation as well". "Those are individual issues we can not pre-judge now", said the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while outlining the broad issues which would be open for arguments. We can not celebrate it. The Home Ministry has filed an affidavit elucidating the government's stand on the case.

The gay community was emboldened previous year when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy. This, petitioners claim is a direct violation of Articles 14, 15, 16, 19 and 21 of the Constitution which guaranty Indian citizens various fundamental rights like freedom of expression, equal protection of the law, equality of opportunity and personal liberty.

"Right to choose my partner is part of my fundamental right to privacy", Datar had submitted. "Laws made 50 years ago can become invalid over time", he submitted.

When the hearing was about to commence on the batch of writ petitions, an advocate appearing for NGO Naaz Foundation, which was the first petitioner to approach the Delhi High Court in 2001 on the issue, sought permission to intervene. The court will likely resume the hearing on Wednesday.

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