The fate of legal status of homosexuality in India will be decided on Thursday, when the Supreme Court announces its verdict on a batch of petitions challenging the Constitutional validity of Section 377 of the Indian Penal Code that criminalises same sex relationships.
The apex court will decide whether or not to strike down this section of the IPC.
Section 377 is one of the few important issues that the bench headed by Chief Justice Dipak Misra is expected to deliver its judgment on before his retirement on October 2. The bench had reserved the order in this matter during the last hearing on July 17.
Section 377 of the IPC states: “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.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.
Who are the petitioners:
The petition being heard at the SC have been filed by five-high profile people who claim that they live in the fear of being punished. The petitions have been filed by Aman Nath, the owner of Neemrana hotels, Navtej Johar, a classical dancer, celebrity chef Ritu Dalmia, former editor Sunil Mehra and restauranteur Ayesha Kapur.
Arguments against strike down of Section 377:
Respondents who are opposing the petitions seeking to decriminalise homosexuality or gay sex -- Apostolic Alliance of Churches and others -- urged the court to leave the fate of Section 377 IPC to Parliament. The respondents argued that decriminalising the same-sex relationship would have a cascading effect on other statutes including the personnel laws and the spread of dreaded diseases like AIDS.
However, during the last hearing, Justice Rohinton Nariman disagreed with counsel Manoj George, representing Apostolic Alliance of Churches, saying that there will be "no cascading effect" as all such references in other statutes will get deleted.
The cause of the sexually transmitted diseases was not the sexual intercourse but the unprotected sex, Justice Chandrachud said, pointing that a village woman may get infected with the disease from a husband who is a migrant worker.
His remark came as senior counsel K Radhakrishnan sought to present a spectre of widespread HIV and AIDS if Section 377 was decriminalised.
The court said it was duty-bound to strike down a law that is in conflict with the fundamental rights and not to leave it to majoritarian government to address it.
"The moment we are convinced that a law is violative of the fundamental rights, we will strike it down and not relegate it to legislature," said the five-judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra.
The Centre, which had initially sought adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of legality of the penal provision with regard to the aspects of criminalising consensual unnatural sex between two consenting adults.
The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to be remain in the statute book.
Will SC revise its previous order on gay rights?
In 2013, the Supreme Court had cancelled a Delhi high court order that had decriminalised homosexuality by overturning the outdated law and said it was the job of parliament to decide on scrapping laws. That decision needs to be reconsidered because of constitutional issues, said the Supreme Court.
In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. It had responded to a petition by Naz Foundation, which has fought for almost a decade for gay rights.
Although prosecution under section 377 is not common, gay activists say the police use the law to harass and intimidate members of their community.
(With inputs from IANS)