Supreme Court refuses to adjourn hearing on pleas challenging Section 377

Clay Curtis
July 11, 2018

In a surprise move, the court announced in 2016 that it would take up the Section 377 case and hear arguments seeking to have the law struck down.

Anwesh Pokkuluri, along with 19 others who are present and former students of IITs across the country, had moved the Supreme Court in May which sought to challenge the constitutional validity of section 377.

"I state and submit that so far as the constitutional validity Section 377 to the extent it applies to "consensual acts of adults in private" is concerned, the Union of India would leave the said question to the wisdom of this Hon'ble Court", the Centre's affidavit read.

The petitioners contend that their rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed by the Constitution, were infringed by Section 377.

Airing the government's concerns, Mehta referred to Justice Chandrachud's observation made during the course of the hearing on Tuesday that in Hadiya judgement, that "we have already decided that the right to choose a partner is a fundamental right". "Whether a pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people should remain in existence", asked Rohatgi. It has been illegal in India since Section 377 of an 1861 law - introduced under British colonial rule - banned sexual activity "against the order of nature", including with another man or woman.

At long last, the Central government has clarified its stance on Section 377 of the Indian Penal Code. The determination of order of nature is not a constant phenomenon.

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CJI Dipak Misra, in early 2018 made a decision to pull-out petitions filed over two years ago by renowned dancer Navtej Singh Johar, journalist Sunil Mehra, celebrity chef Ritu Dalmia, historian Aman Nath and businesswoman Ayesha Kapur.

The newly re-constituted five-judge constitution bench is scheduled to commence hearing of four crucial matters, including the issue of sexual relationship between persons of same sex, from Tuesday (July 10).

The bench, led by Chief Justice of India Dipak Misra, however, refused and listed it for today.

The assurance to the Centre came after additional solicitor-general Tushar Mehta objected to a suggestion from Justice D.Y. Chandrachud, another judge on the bench headed by the CJI.

The court was not confining its ambit to LGBTQ or sexual orientation, it is looking into the aspect of two consenting adults who will not be liable for criminal action for their relationship.

He argued that the LGBT community accounted for a large section of the country's population whose right of sexual orientation was protected under Article 21 that relates to life and personal liberty. The court will likely resume the hearing on Wednesday.

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