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On Day 1, SC sets rapid pace for hearing on Section 377
From the Web Desk, 11/07/2018, New Delhi

The Supreme Court indicated on Tuesday that it would focus closely on the question whether Section 377 of the IPC, which makes gay sex an offence, should be decriminalised, raising hope of speedy proceedings that could end the lingering and contentious issue of LGBTQ rights.

During the hearing before a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, clear signals emerged in favour of decriminalising Section 377, which the Delhi high court had in 2009 ruled in favour of, only to be reversed by a two-judge SC bench in 2013 in the Suresh Kumar Koushal vs Naz Foundation case.

During the day-long hearing, the bench said it only intended to get out of the “mess” created by the Suresh Koushal judgment.

The court made it evident that it was disinclined to examine wider issues relating to gay rights when, appearing for petitioners led by dancer Navtej Singh Johar, former attorney general Mukul Rohatgi, advocates Arvind Datar and Saurabh Kirpal argued for not only decriminalisation of Section 377 but also a clear enunciation on the right to choose same-sex partners. They said this was part of the fundamental right to privacy and choice, both intrinsic to right to life.

But the CJI-headed apex court bench said, “We will deal with the constitutional validity of Section 377 alone. Whatever rights or disputes that are linked to relationships between same-sex partners as a consequence of the Supreme Court’s determination of the constitutional validity of Section 377 will be dealt with as and when they arise. We cannot give an advanced ruling on such future consequences to our ruling on Section 377,” it said.

Significantly, additional solicitor general Tushar Mehta, who told the court that he would convey the Centre’s stand during the hearing, agreed with the court and said the Centre was also of the view that the arguments should be confined to the issue relating to validity of Section 377. The hearing on Tuesday went at a fast clip, with Rohatgi, Datar and Kirpal concluding their arguments. The Centre must present its stand on validity of Section 377 in a day or two.

Interestingly, the UPA government in 2009 had accepted the Delhi HC judgment and did not appeal against it in the SC. When Suresh Koushal filed an appeal, the home ministry in 2013 argued against decriminalising gay sex and opposed legalising same sex relationships. But the health ministry advocated a compassionate view on the LGBTQ community’s rights.


Political parties, fearing a conservative backlash, have avoided comment or even considered amending the law to make it more equitable for the LGBTQ community which faces hostility of society. This is in contrast with vocal articulation of caste rights or the polarised but voluble debate on triple talaq and polygamy. When the bench said it only intended to get out of the “mess” created by the Suresh Koushal judgment, Rohatgi said not much persuasion was required on that count as the nine-judge bench ruling on right to privacy would take the petitioners “home and dry”. He said the issue was settled by Justice Chandrachud’s judgment, which was written for him and on behalf of three other judges. With Justice S K Kaul agreeing with him, five out of nine judges ruled that the SC’s 2013 judgment upholding constitutional validity of Section 377 was wrong.

Rohatgi said the sexual preferences of the LGBTQ community, which had been discriminated against for centuries because of a Victorian-era law enacted in 1860, “is immutable and not a medical condition to be cured. Such individuals live with this orientation and they do not consider the same to be either wrong, unnatural or against the ‘laws of nature/order of nature’ because it is nature which has given them the particular orientation”.

He added, “Such individuals need protection, more so than those having more common orientation (heterosexual), to achieve their full potential, to live freely, without fear, apprehension and trepidation...”


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