New Delhi: A five-judge Constitutional bench of the Supreme Court on Tuesday started hearing a batch of petitions seeking decriminalization of homosexuality under Section 377 of the Indian Peal Code (IPC).
Senior counsel Mukul Rohatgi, appearing for a petitioner, said the apex court was moved for a “larger prayer" and not just to decriminalize homosexuality. In the light of the nine-judge bench’s judgement, declaring right to privacy as a fundamental right, it is time for “constitutional morality" to overtake “common perception" formed by Section 377 over a period of 100 years, he argued.
“It will have impact on how the society looks at these people, about perception, about livelihood and jobs for such people." Rohatgi added.
However, rejecting Rohatgi’s plea to adjudicate issues arising out of personal rights and duties of same-sex couples, such as live-in relationships and domestic violence, the bench comprising Chief Justice of India Dipak Misra, justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said that “these things would be debated when they come before the court" and asked the petitioners to restrict the scope of litigation to Section 377.
Arvind Datar, the counsel for another petitioner, said that Section 377 was codified in 1860 based on colonial religious sentiments and it must stand the “test of truth, science and logic". “Innate, natural orientation of a person cannot be part of a penal statute..(it is) punishing something god-given.. it is not against the order of nature—it is nature itself," he argued.
Additional Solicitor General of India Tushar Mehta informed the court that the centre was “in the process of discussion" on Section 377.
In 2009, the Delhi high court had ruled that Section 377 of IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal", was unconstitutional. Section 377 also criminalizes sexual intercourse that is penile and non-vaginal, deeming it “against the order of nature". The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT) population, in particular, but its provisions can also be applied to heterosexual citizens.
The judgement was, however, overturned by a bench comprising justices G.S. Singhvi and S.J. Mukhopadhyaya of the Supreme Court in December 2013. It reinstated the 1860 law that criminalizes consensual sex among homosexual adults.
In January 2018, a bench headed by CJI Misra had agreed to consider the implication of the privacy judgement and take another look at the constitutional validity of Section 377, in response to a plea by representatives of the LGBT community, including Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.
The hearing will continue on Wednesday.