The Supreme Court will begin hearing a few pleas challenging the Section 377 of the Indian Penal Code on Tuesday (July 10).
This law which criminalises homosexuality or any non penile-vaginal intercourse, even between two consenting adults, is considered draconian by many and several LGBTQ members and activists have been fighting hard to decriminalise it.
The petition challenging Section 377 will be heard by a five-judge bench comprising of Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra and headed by Chief Justice of India Dipak Misra.
Arvind Dattar on Section 377The hearing of the petitions have resumed post-lunch. Senior advocate Arvind Dattar is now arguing for the petitioner.
SC hearing pleas seeking scrapping of #Section377: Arvind Dattar, appearing for a petitioner, says if Section 377 was enacted today, it won't withstand test of constitutionality. Court tells him,you've to convince court that if a law like this was made now,it won't be sustainable
— ANI (@ANI) July 10, 2018
He is of the opinion that having a different sexual orientation can't be treated as a crime.
SC hearing pleas seeking scrapping of #Section377: Arvind Dattar, appearing for a petitioner, says if a person has a different sexual orientation, it can’t be treated as a crime. This can't be treated as against the order of the nature.
— ANI (@ANI) July 10, 2018
"The SC judgement on privacy said sexual orientation essential attribute of privacy. That eclipses Section 377 IPC and makes it liable to be struck down," TIE quoted Dattar as saying.
Rohatgi's fights for sexual minoritiesRohatgi also said that Section 377 is a product of the "Victorian morality".
"Position of ancient India was much different, he says and refers to Shikhandi of Mahabharata & the Khajuraho caves," TIE quoted the former AG as saying.
SC hearing pleas seeking scrapping of #Section377: Mukul Rohatgi appearing for one of the petitioners says, "As society changes, values changes, we can say, what is moral 160 years ago might not be moral today."
— ANI (@ANI) July 10, 2018
Former Attorney General Mukul Rohatgi is of the view that the provision remaining in statute book has led society to look at "sexual minorities" with aversion. He feels that Constitutional morality should override it, reported Indian Express.
Supreme Court hearing pleas seeking scrapping of #Section377: Former Attorney General Mukul Rohatgi, says," Issue of gender and sexual orientation are two different things. These two issues should not be mixed up. This is not question of choice."
— ANI (@ANI) July 10, 2018
Supreme Court hearing pleas seeking scrapping of #Section377: Former Attorney General Mukul Rohatgi, says, "This is a case of constitutional morality vs others. This case has a large ramification."
— ANI (@ANI) July 10, 2018
While a few people want India to do away with the draconian law, others feels that homosexuality is a crime.
I hope that #Section377 is maintained as it is by the Honorable Supreme Court. Homosexuality IS and must be considered a sin and a crime. No place for gays in India.
— Harshit Tiwari (@kallgorr) July 10, 2018
I feel #Section377 needs to stay.
— গোসানী (@DrNeelakshiGswm) July 10, 2018
A section of people on Twitter is of the opinion that it is high time that homosexuality should be legalised in India.
Dear Supreme Court,
— Sayantan Ghosh (@sayantansunnyg) July 10, 2018
All you need is love.#Section377
About time we collectively rise above & become a more liberal society & discontinue being the land of discrimination & hypocrisy. People have a fundamental right to privacy & can take personal decisions without being answerable. #Section377 has to go. This will be a huge step.
— Bhana (@amBHANA) July 10, 2018
As #Section377 is being heard today, let's hope that we undo thousands of years of injustice, of treating equals as non-equals, making private a matter of public glare.
— jyotsna singh (@singh_jyotsna) July 10, 2018
LGBT activists are of the opinion that they should be treated equally under the law.
We hope things will work well this time. When the law is a certain way for everybody then why does it have to be different for us alone? The way we are is not unnatural: Jaya, LGBT activist on SC hearing pleas seeking scrapping of #Section377 which criminalizes homosexuality pic.twitter.com/olmlipmUkX
— ANI (@ANI) July 10, 2018
Constitution bench of Supreme Court begins hearing the pleas seeking scrapping of Section 377 of IPC which criminalises homosexuality.
Sexual minorities in Bangalore hopeful
Akkai Padmasahali, one of the petitioners and an LGBT activist has high hopes from the SC.
Here's the list of six petitions that the SC will hear today:
- Navtej Singh Johar v. Union of India (UOI), WP (Crl) No. 76/2016
- Akkai Padmashali v. UOI, WP(C) No.572/2016
- Keshav Suri v. UOI, WP (Crl) No.88 of 2018
- Arif Jafar v. UOI, WP(Crl) No.100/2/18
- Ashok Row Kavi & others v. UOI, WP(Crl) No.101/2018
- Anwesh Pokkuluri v. UOI, WP (Crl) No. 121/2018
Even though Iyer has quoted lines from Kama Sutra, an ancient Hindu text written by Vātsyāyana to argue against the draconian law, senior BJP leader Subramanian Swamy has opposed the dercriminalisation of Section 377.
It is not a normal thing. We cannot celebrate it. It's against Hindutva. We should invest in medical research to see if it can be cured. Government should consider having a 7 or 9 judge bench: Subramanian Swamy on SC to begin hearing the pleas seeking scrapping of #Section377 pic.twitter.com/EsvCFzyPNZ
— ANI (@ANI) July 10, 2018
Among the applications accepted by the apex court is a one which has taken reference from the holy texts of the Hindus like Bhagavad Gita. This petition was filed by a Mumbai-based activist Harish Iyer.
"The Kama Shastra acknowledges third-gender marriages wherein same-sex couples with great attachment and complete faith in one another get married," the application quoted a section from the Kama Sutra, reported HT.
"I have filed this application as an individual who has been directly affected by Section 377. Over the past decade, I have faced prejudice," Iyer said.
Which previous judgements are being quoted?
A few previous judgements are being taken into consideration by the the supporters of the gay law to justify why India should do away with laws against homosexuality.
According to case called National Legal Services Authority (Nalsa) versus Union of India judgement, which dates back to 2014, equal social and legal status was granted to the transgender community,.
The other judgement which the petitioners will be quoting is the 2017 Justice K.S Puttaswamy (Retd) and Anr versus Union of India case, which had ruled that the right to privacy is a fundamental right. It had also said that sexual orientation was an essential attribute of privacy.
Petitions to quote from referencesIn order to justify that homosexuality is not a crime, the petitioners have drawn various references from previous verdicts and even instances from religious texts.
Bench to hear 6 petitionsThe bench will be hearing six petitions, which have been filed by an NGO Naz Foundation, parents of sexual minorities and Voices Against 377, a collective of human rights groups, reported Hindustan Times.
