Supreme Court bench to check validity of Section 377

A 158-year-old draconian law that prescribes a life term in jail for gay sex is under the spotlight as a five-judge Constitution Bench on Tuesday commenced a crucial hearing on a clutch of petitions that called for its scrapping. The five-judge bench headed by Chief Justice Dipak Misra said it will also examine the "correctness of its 2013 verdict" that had set aside the Delhi High Court judgment that decriminalised gay sex.

The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgment that had held as unconstitutional section 377 of the IPC. 

During the hearing on Tuesday, the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said it would examine the constitutional validity of section 377 of the IPC and the fundamental rights of the LGBTQ (Lesbians, Gay, Bisexual, Transgender, Queer) community.

Soon after the bench began hearing the pleas seeking scrapping of Section 377, Additional Solicitor General Tushar Mehta, representing the Central government, told the court that the government will file its response in the case later. "I am in the process of discussing the issue, section 377 is a question of law," Mehta said on Tuesday. On the other hand, former Attorney General Mukul Rohatgi, appearing for one of the petitioners, argued that the issue deals only with sexual orientation and that it has nothing to do with gender. He said, "Section 377 violates one's human rights.

The issue deal only with sexual orientation and it has nothing to do with gender."

The bench, which agreed with the submission of Rohatgi, also said it would examine the fundamental right to life and sexual freedom. In the writ petitions too, there is a challenge to the 2013 judgement of the apex court by which homosexuality was held as a criminal offence. The apex court had on Monday refused to defer the hearing after the Centre sought more time to file replies on the PILs.

"The question here is whether section 377 of the IPC is ultra vires (beyond one's legal power) or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners or whether they can marry. Those are individual issues we cannot pre-judge now," the bench said, while outlining the broad issues which would be open for arguments.

The observations came when former Attorney General and senior advocate Rohatgi, who is appearing for dancer and one of the petitioners Navtej Jauhar, said, "My life as a sexual minority has to be protected. Do not restrict this hearing to just Section 377 of the IPC. Our lives are passing by. How many of us can come on individual issues later?"

Referring to the provision, the bench said two separate and distinct issues were open for argument and they were whether the sex against the order of nature, as prescribed under the law, was "retrograde" and can the sexual rights be denied to persons just because they form a minuscule minority.

Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur among others.