JOIN USThe Supreme Court on Tuesday said the penal provision criminalising consensual sex among consenting adults acted as a curb on human rights of the individuals, as it began its hearing on a batch of writ petitions challenging the legal validity of the British-era law.
A five-judge Constitution bench presided over by Chief Justice Dipak Misra said the court would confine itself with the issue of the legality of Section 377 of the IPC and that if it can be declared as unconstitutional or if it is a constitutional right to have a same-sex relationship.
“If we strike down Section 377, then other issues would arise. The right to marriage, inheritance or domestic violence and live-in relationship can be debated when a lis (legal issue) comes before us,” the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.
“We can't pre-judge those contingencies. If Section 377 is to be declared unconstitutional, it is unconstitutional. You can argue on violations of the extent of fundamental right...curtailing sexual orientation curbs human rights,” the bench said.
Additional Solicitor General Tushar Mehta, appearing for the Centre, submitted that the government's stand on the issue would be made during the course of the hearing.
Senior advocate Mukul Rohatgi, representing petitioner Keshav Suri, a Delhi-based hotelier, submitted that the sexual orientation of an individual is an innate facet of one's personality, which was a matter of choice and different from gender. "My life as a sexual minority has to be protected,” he said.
Section 377 violated the very right to autonomy and right to life guaranteed under Article 21 of the Constitution, he said.
Rohatgi also drew a parallel between Section 375 (definition of rape) and Section 377, saying the sexual relations between a man and a woman without consent is rape but how can such relations between two men be an offence if there is a consent.
He also assailed the provision criminialising the act as “being against the order of nature” saying it was based on Victorian-era model, while the position in ancient India was much broader.
He said the provision has remained in the statute book for over 100 years and was no ground to justify its continuance. He said the right to privacy judgement by the nine-judge bench had already declared that the verdict delivered in 2013 in the Naz Foundation case, that overturned the Delhi High Court's decision decriminalising sex among consenting adult, wrong.
He also cited the judgements delivered by the apex court in Hadiya case, transgender issues and 'Independent Thought' to buttress his contention. Rohatgi also said various countries like the USA, South Africa and Nepal had struck down such a provision.
Senior advocate Arvind Datar, representing one of the petitioners, said when Section 377 was put in statute, there were no constitutional constraints. He said the right to choose one's partner as held valid in Hadiya case must include the right to choose a same-sex partner.