Centre leaves it to Supreme Court to decide on Section 377

LGBT+ rights campaigners at a Pride parade in Chennai

LGBT+ rights campaigners at a Pride parade in Chennai

During the course of day-long arguments in a packed courtroom, the apex court also observed that colonial laws like section 377 of the Indian Penal Code (IPC), which criminalises consensual gay sex, will have to pass the rigours of the Constitution.

"We want them to have a normal economic life".

The court said it will examine if the fundamental right to life includes sexual freedom. He said, "We were surprised when we had learnt that the CJI preponed the hearing of our petition and even reshuffled the judges for the hearing".

The only question, therefore, which is referred for the consideration of larger bench is the question of constitutional validity of criminalizing "consensual acts of adults in private" falling under Section 377 of the Indian Penal Code and no other questions fall for consideration of this Hon'ble Bench as evident from the order of reference. Was it the order of nature in 1860?

When the CJI said "we may begin this experiment from hear, the A-G K.K. Venugopal agreed and said the experiment must start soon from the CJI's court and depending upon its functioning for a month, it can be extended to other court halls in the apex court".

"Unnatural offences. -Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". He pleaded the court for more time to file the Centre's reply if the arguments were beyond Section 377.

He explained the impact of the supreme court overturning the 2009 ruling, saying: "We got calls from parents, concerned about what would happen to their children". They should get jobs on merit, but we can not allow them to celebrate. The Central government is represented by Additional Solicitor General Tushar Mehta.

The hearing comes nearly a year after the Supreme Court ruled that individual privacy is a fundamental right, a verdict constitutional experts say has a bearing on the homosexuality ban.

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. A person below 18 would be presumed not to be able to consent to a sexual act.

The bench said the curative petitions filed by it has a limited scope and would have to be heard by some other bench.

Emboldened by the historic apex court judgment that declared privacy as a fundamental right in 2017, celebrities and prominent personalities filed a batch of pleas seeking to assert their right and choice of sexual orientation.

The hearing will resume on Wednesday.

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