Supreme Court hearing on Section 377 LIVE: The Centre on Tuesday said it would not contest the petitions and left the decision to the "wisdom" of the court.
The Supreme Court on Thursday resumed hearing a batch of petitions challenging the validity of Section 377 of the Indian Penal Code (IPC) that criminalises homosexuality. The Centre on Tuesday said it would not contest the petitions and left the decision to the “wisdom” of the court.
In an affidavit filed in court, the Ministry of Home Affairs stated: “I state and submit that so far as the constitutional validity (of) 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.”
Also read | Section 377: When two ministries took opposite stands
A Constitutional bench led by Chief Justice Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, is hearing the matter.
In the last two days of the hearing, the petitioners have argued that 377 — intercourse against the order of nature — is an outcome of Victorian morality and should be struck down as values change along with society. The court is only hearing the issue of gay sex and not that of marriage in the LGBTQ (lesbian, gay, bisexual, transgender and queer) community or inheritance in live-in relationships. Read highlights from the first two days of the hearing here.
The Supreme Court is hearing petitions challenging Section 377 of the IPC that criminalises homosexuality. Here are live updates from the court.
The bench has risen for lunch and will resume at 2 pm. While we wait, here’s a look at a map of the countries where homosexuality is legal and where it is a crime.
India is one of 72 countries in which homosexuality is a criminal offence, according to an international count last updated in October 2017. Eight countries provide for the death sentence, while five more countries technically have that provision — under interpretation of the Sharia — but are not known to have invoked the provision, according to a map and report by ILGA (International Lesbian, Gay, Bisexual, Trans and Intersex Association), a worldwide federation of 1,200 member organisations from 132 countries.
Section 377 of the IPC was introduced by the British in 1861. It criminalises sexual activities against the “order of nature” and the ambit of this law extends to any sexual union involving penile insertion. The law reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Watch this quick explainer below:
Advocate Ashok Desai appearing for a petitioner traces the history of homosexuality and says it was prevalent in Ancient Greece and was accepted in ancient India.
Appearing for a medical practitioner, Senior Advocate C U Singh credits the govt for going ahead with Mental Healthcare Act. He seeks a declaration from the court prohibiting all sorts of discrimination on the basis of gender or sexual orientation.
Justice D Y Chandrachud, referring to Section 21A of the Mental Healthcare Act which says “there shall be no discrimination on any basis including gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class or disability”, says Parliament recognises that there should not be any discrimination on basis of sexual orientation.
Justice Indu Malhotra, the only woman judge on the bench, observes that being homosexual is not an aberration but a variance. She says there are other species which indulge in same-sex relations as well. Stating that members of the LGBTQ community do not get proper medical treatment due to inhibitions, she adds, ‘Homosexuals don’t disclose there sexuality & due to family pressure etc get into marriages. Then frustration etc leads to bisexuality. And what about the trauma of off springs who come to know one parent is homosexual.’
A day after the Centre said it would not contest the petitions challenging Section 377, Divan says this is an opportune moment for the court to issue additional declarations apart from striking down the provision, reports Bar & Bench.
The Supreme Court resumed hearing petitions challenging the validity of Section 377 of the IPC this morning. Petitioners seek decriminalisation of homosexuality as it violates fundamental rights guaranteed under Part-III of Constitution. In court this morning, Senior Advocate Shyam Divan sought declaration under Article 14 that no one will be discriminated against on the basis of their sexual orientation.
Section 377 deals with “unnatural offences,” and holds “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 ten years, and shall also be liable to fine.”
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