Nation/City

150 years old rule of ban on gay sex in India

150 years old rule of ban on gay sex in India

An affidavit was submitted in the Supreme Court on July 11, on gay sex in India by additional solicitor general Tushar Mehta. Supreme Court have to take a decision on 150 years old ban on gay sex in India as per government. The government said that court is free to decide on Section 377 of the Indian Penal Code is constitutionally valid or not.

The bench of Supreme Court led by Justice Dipak Mishra includes four more Judges RF Nariman, AM Khandelwal, DY Chandrachud and Indu Malhotra.

Justice Chandrachud reacted to a submission by senior advocate Arvind Datar that the right to sexual orientation was meaningless without the right to choose a partner.

He drew the observation in the Hadiya case from March 2018 judgement wherein neither a State nor parents can influence an adult on the choice of partner as it would be a violation of the fundamental right to privacy.

Being a lesbian or gay is not a matter of choice it is inborn which has something to do with the genes.

 

Mr. Rohtagi said that the laws made 50 years age may become invalid over time as being LGBT (Lesbian, Gay, Bisexual and Transgender) in also an order of nature as nature gave them this and everything changes as per the time.

He also said that Section 377 falls under unnatural offences in the IPC but a relation between a man and man & also between woman and man can be natural. But a sex between man and woman becomes unnatural if not in the traditional way as per the Section 377.

Justice Nirman guided Mr. Rohtagi that he should focus on “order of nature” and whether LGBT was an order of nature.

Justice Chandrachud said that the court should restrain itself to a declaration on whether section 377 was constitutional or not. It should examine the wider concept of “sexuality” to include co-habitation etc.

Chief Justice Misra said that first the Bench should decide the constitutionality of Section 377. The 172nd Law Commission Report had recommended the deletion of Section 377 but nothing was done at all during these years as observed by Mr. Rohtagi.

He said that the Centre had filed the review petition agent the apex court judgement of December 2013 and the government had never supported the section but was silent.