The Supreme Court today declined to wade into the issue of marriage in the LGBT groups or inheritance in their live-in relationships, as it began hearing a clutch of petitions challenging a 158-year-old colonial-era law that criminalises gay sex.
During the course of day-long arguments in a packed courtroom, the apex court also observed that colonial laws like section 377 of the Indian Penal Code(IPC), which criminalises consensual gay sex, will have to pass the rigours of the Constitution.
At the outset, the court said it would only deal with the question of validity of section 377 that bans homosexuality after it was submitted by a petitioner that it should not restrict the hearing to just this IPC provision.
A five-judge constitution bench headed by Chief Justice Dipak Misra said it will examine the correctness of its 2013 verdict setting aside the Delhi High Court judgement decriminalising gay sex under section 377.
Opening his arguments, former Attorney General and senior advocate Mukul Rohatgi, appearing for a petitioner and dancer Navtej Jauhar, said he wanted a "declaration" from the apex court that the rights of those who formed sexual minority are protected under Article 21 (right to life and liberty) and the first issue would be to test the correctness of the 2013 judgement.
He said "pre-constitutional law like section 377" will have to go as it does not conform to the Constitution.
"What is the 'order of nature'? Was it the order of nature in 1860? What is the order of nature that can change with the passage of time. Laws made 50 years ago can become invalid over time," he submitted.
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 question here is whether Section 377 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, whether they can marry, etc.
"Those are individual issues we cannot pre-judge now," said the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while outlining the broad issues which would be open for arguments.
The observations were made after Rohatgi submitted, "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?"
The bench said two separate and distinct issues were open for arguments. These are whether sex against the order of nature, as prescribed under the law, was "retrograde" and can sexual rights to persons be denied just because they formed a minuscule minority.
The LGBT (lesbian, gay, bisexual, transgender) community members have been facing persecution and loss of employment, as the society looked at them differently mainly because of the 158-year-old law, Rohatgi said
"The LGBTQ community members are equal to other members of society but have a different sexual orientation, which is not a matter of personal choice but an orientation that one is born with," he added
Gender and sexual orientation are different and the fact that one was gay or lesbian was not a matter of choice as a person was born with it, he said, adding that they cannot be denied their fundamental rights.
He referred to various judgements including the Delhi HC verdict on homosexuality, the NALSA judgment on the rights of LGBT community and the nine-judge decision which declared right to privacy as fundamental right.
The nine-judge bench had held that decisional autonomy was part of the right to privacy and moreover, six, out of nine judges, had ripped apart the 2013 apex court verdict re-criminalising consensual gay sex.
"Justice Chandrachud's (privacy) judgment condemning the 2013 verdict which had upheld section 377 of the IPC is the main decision. If so, I am already home and dry," Rohatgi said.
Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath, Keshav Suri and business executive Ayesha Kapur and 20 others who are former and presently studying in IITs.
Senior lawyer Arvind Datar, representing another petitioner, said now it has been established that homosexuality is "normal, benign sexual variation".
The bench referred to Datar's submissions and said that homosexuality was not only seen in humans but also in animals.
Datar said laws like section 377, which were made before framing of Constitution, cannot be held to be Constitutional just because parliament had left them "untouched".
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