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SC commences crucial hearing on pleas for decriminalising gay sex

Press Trust of India  |  New Delhi 

The today commenced a crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same

A five-judge constitution bench headed by said it will also examine the correctness of its 2013 verdict that had set aside the judgement decriminalising 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 judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.

During the hearing today, the bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y 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.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal inter course 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.

When the hearing was about to commence on the batch of writ petitions, an appearing for NGO Naaz Foundation, which was the first petitioner to approach the in 2001 on the issue, sought permission to intervene.

The bench said the curative petitions filed by it has a limited scope and would have to be heard by some other bench.

It was on the petition filed by the that the Delhi High Court had decriminalised section 377 of the IPC, which was challenged in the apex court by some individuals and religious organisations. Even the Centre had at that time favoured retention of the provision in the IPC as penal offence.

Today's hearing began with senior Mukul Rohatgi, appearing for Navtej Jauhar, one of the petitioners, telling the court that the right to have sexual freedom should be examined in view of the nine-judge bench verdict on privacy which was delivered on August 24, 2017.

In the judgement on privacy as a fundamental right, the apex court's nine-judge bench had said the right to privacy cannot be denied to members of the community merely because they have unconventional sexual orientation and form a miniscule fraction of the over 1.32 billion Indian population.

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 yesterday refused to defer the hearing after the Centre sought more time to file replies on the PILs.

After the apex court had set aside the Delhi High Court's 2009 judgement decriminalising sex between consenting adults of the same sex by holding Section 377 of IPC as "illegal", review petitions were filed. On their dismissal, curative petitions were filed by the affected parties seeking re-examination of the original verdict.

During the pendency of the curative petitions, the plea was made that an open court hearing should be granted and after the apex court agreed to it, several fresh writ petitions were filed seeking decriminalising of Section 377.

Others who have filed petitions against section 377 are Sunil Mehra, Ritu Dalmia, hotelier and

(This story has not been edited by Business Standard staff and is auto-generated from a syndicated feed.)

First Published: Tue, July 10 2018. 13:10 IST
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