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Supreme Court refuses to adjourn hearing on pleas challenging Section 377

11 July 2018

The Supreme Court on Wednesday will continue hearing a batch of petitions against Section 377 of the Indian Penal Code (IPC), which criminalises homosexual activities. A five-judge bench, headed by Chief Justice Dipak Misra, will hear the petition challenging Section 377 of the Indian Penal Court. "When we accept the proposition, the right to choose a partner with a particular sexual orientation is also a right under Article 21", the judge said.

"It affects the basic constitutional and human rights of a large section of society, called the sexual minority", the court said about the 2013 verdict.

"What is the order of nature in 1860 can't be the order of nature today".

During the pendency of the curative petitions, the plea was made that an open court hearing should be granted and after the apex court agreed to it, several fresh writ petitions were filed seeking decriminalising of Section 377. Section 377 IPC denies LGBT persons their rights to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution of India.

"Whatever may not be in question may not be decided", Additional Solicitor General Tushar Mehta told the court expressing the apprehension of the Centre.

The Chief Justice of India (CJI)-led five-judge bench then said it intends to rule - subject to arguments - that two consenting adults even if engaged in "unnatural sex" will not be liable for prosecution for any offence.

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The gay community was emboldened past year when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy. They said this was part of the fundamental right to privacy and choice, both intrinsic to right to life.

The Indian Supreme Court said the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts.

During the hearing yesterday, the apex court had observed that colonial laws like Section 377 will have to pass the rigours of the Constitution.

Earlier in 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench. "Today we are focusing on whether 377 is ultra vires or not", he told Rohatgi.

As per the petitioners, the continuance of Section 377 ensures that the Constitutional guarantees of equality, fraternity, dignity, life and liberty, are not extended to them.

Globally, 72 countries ─ including Pakistan ─ criminalise same-sex relationships, according to a 2017 report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association. 20 of them had written their personal encounters, the key highlights of which pointed to one factor- discrimination based on their sexual orientation. "The law recognizes petitioners only as criminals and reduces their love to a crime", states the petition.

Supreme Court refuses to adjourn hearing on pleas challenging Section 377