constitutional validity

Section 377: Supreme Court Hints at Legalising Homosexuality, Says Right to Choose Sexual Partner a Fundamental Right

New Delhi, July 11: Giving ample indications towards quashing Section 377 which criminalises gay sex, the Supreme Court on Wednesday said that right to sexual orientation is not a fundamental right but pointed out that the right to choose a sexual partner is a fundamental right.

A five-judge constitution bench headed by Chief Justice Dipak Misra, hearing petitions seeking decriminalisation of the 158-year-old Colonial-era law, said if it decided to strike down the law, then it would awaken the LGBTQ (lesbian, gay, bisexual, transgender and queer) community members and help them to live “life to the fullest”.

It considered the concerns of the LGBTQ community and said once it decriminalised Section 377 of IPC, all restrictions on them “like forming an association will be lifted, as at present, they cannot form association merely because unnatural sex is a crime.”

“We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under section 377,” the bench said, adding that “the issue is if two consenting adults are in a relationship, then they shall not be liable to any kind of prosecution.”

The observations by the top court, rising hopes for the LGBTQ community, came after the Centre left it to the Supreme Court to decide whether Section 377 of the IPC, which criminalises gay sex, is constitutionally valid or not.

“We leave the validity of Section 377, so far as it relates to consensual acts between two adults, to the wisdom of the Hon’ble Court,” said Additional Solicitor General Tushar Mehta, who is arguing for the Centre.

The Centre, however, urged that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.

Mehta said that if the right to choose a sexual partner was recognised as a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which could be contrary to the laws governing marriage.

To this, Justice Chandrachud said that the right to sexual orientation is not a fundamental right, but the right to choose one’s sexual partner is a fundamental right.

“A declaration that this relationship is constitutional will remove the ‘ancillary disqualification’ for people joining services and contesting elections. It will no longer be seen as moral turpitude,” the bench said, adding that a law criminalising such relationship was an an example of “social disdain”.

It said the penal provision has a “chilling effect” not only on public services but also private employment.

On the issue of restricting the hearing to the validity of Section 377, it said, “we are dealing with the issue whether the relationship between two consenting adults are relatable to the right to life under Article 21 of the Constitution … We have to deal with the nature of relationship and we are not here to deal with marriages, adoptions and other ancillary issue”.

Justice Chandrachud said the court was not here to deal with “kinky stuff”, but has to deal with a particular kind of relationship between adults and the question whether it can be brought under the ambit of Article 21.

Lawyer Maneka Guruswamy, appearing for a petitioner, referred to reports of Indian and American psychiatric bodies and said homosexuality was a normal sexual orientation.

Terming the law as a “terrible colonial legacy”, she said it violated Articles 15 (discrimination on sex), 14 (equality), 19 (liberty) and 21 of the Constitution and has a “chilling effect” on the sexual minority.

Senior lawyers Anand Grover, Shyam Divan and lawyers Saurabh Kripal, Guruswamy and Jayna Kothari also advanced the arguments.

Divan submitted that the apex court should declare the ‘right to intimacy’ as fundamental right.

Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

The hearing on the petitions would resume tomorrow.

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