SC divided over scope of examining section 377; next hearing on Wednesday

Three Supreme Court judges, who are part of a five-judge constitution bench hearing the high-profile challenge to the constitutional validity of section 377 of the IPC, on Tuesday differed over the scope and extent of examining the penal provision. The hearing in the pleas seeking scrapping of Section 377 to continue on Wednesday at the Supreme Court.

The five-judge bench headed by Chief Justice Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra commenced hearing on a batch of pleas challenging the constitutional validity of section 377 of IPC which criminalises consensual sex between two adults of the same gender.

During the hearing, former Attorney General and senior advocate Mukul Rohatgi, appearing for dancer and one of the petitioners Navtej Singh Johar, said, "My life as a sexual minority has to be protected and hearing on the issue cannot be only restricted to just section 377 of the IPC. There are several rights involved which goes beyond the scope of section 377".

Rohatgi's argument was objected to by Additional Solicitor General Tushar Mehta, appearing for the Centre, who said the reference order was limited to section 377 of IPC and nothing else could be debated in the matter.

Mehta said Rohatgi should confine his arguments to the constitutional validity of section 377.

Justice Chandrachud then said the matter was being heard by a constitution bench and its declaration cannot be limited to merely holding a section in law as constitutional or unconstitutional.

He said the right to sexual orientation was part of the larger rights and the declaration cannot be confined to just sexual orientation.

"You (Rohatgi) have to argue in a much larger way beyond the realm of sexual orientation", Justice Chandrachud said.

CJI Misra and Justice Nariman differed with the view of Justice Chandrachud and said that firstly, it needed to be decided that section 377 of IPC was ultra vires the Constitution or not.

Mehta said they were at the stage of discussing and not got enough time to prepare a reply on the issue.

Rohatgi said, "I am not going to confine my arguments on just sexual orientation. There are various aspects to it. I have a right to argue".

The Chief Justice then said, "Right now 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. Right to co-habit. These issues are not before us".

The CJI said that no advance rulings could be given on these issues and can only be dealt if the court hold section 377 of IPC ultra vires the constitution.

"Today, we are dealing with constitutional validity of section 377 of IPC and we should not loose focus on it. Today, you have orientation but all other rights can be discussed when the 'lis' (litigation) comes before us", the Chief Justice said.

If enacted, Section 377 'won't withstand the test of constitutionality', says advocate Arvind Dattar 

As the Constitution Bench of Supreme Court continues to hear the pleas seeking scrapping of Section 377 of the Indian Penal Code (IPC) which criminalises homosexuality, advocate Arvind Dattar said if enacted the law "won't withstand the test of constitutionality."

While appearing for one of the petitioners, Dattar submitted to the five-judge constitution bench of the Court that 1860 Code was imposed on India and it did not represent even the will of the British Parliament.

"If Section 377 was enacted today, it won't withstand the test of constitutionality," Dattar said.

However, in response, the Constitutional Bench asked Dattar to convince the star that "if a law like this was made now, it won't be sustainable."

Dattar added: "If a person has a different sexual orientation, it can't be treated as a crime. This can't be treated as against the order of nature."

Section 377 of IPC: Timeline of events


In May, the apex court had decided to hear the plea filed by Indian Institute of Technology's LGBT alumni association seeking scrapping of Section 377 of IPC.

On April 27 this year, Ashok Rao Kavi of Humsafar Trust and Arif Jaffar had also filed petitions against Section 377.

Their plea came just six days after hotelier Keshav Suri, filed a plea in this regard in the top court.

In response to Suri's plea, the apex court on April 23 sought the Centre's reply on the plea seeking scrapping of Section 377.

On a related note, the business tycoon last month tied the knots with his partner Cyril Feuillebois in Paris.

Earlier in 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench.

Categorised as an unnatural offence, consensual sexual intercourse between persons of same-sex is termed 'against the order of nature' under Section 377 of the Indian Penal Code (IPC), and can be punishable by life imprisonment.

Homosexuality a danger to national security: Swamy

Ahead of the Supreme Court hearing on petitions filed against Section 377 of the Indian Penal Code, Bharatiya Janata Party (BJP) leader Subramanian Swamy on Tuesday opined that homosexuality was a danger to national security.

"It (Homosexuality) is not a normal thing. These are all American habits, there's a lot of money behind it. The Americans want to open gay bars, and it'll be a cover for paedophiles and a huge rise in HIV cases. It is a danger to our national security," he told ANI.

Swamy further said although the government is not in favour of discrimination against homosexuals, it doesn't consider it to be natural.

"We want them to have a normal economic life. They should get jobs on merit, but we cannot allow them to celebrate. It is not a natural thing and we cannot treat it as normal. We should invest in medical research to see if can be cured," he said.

Swamy further said that if the top court ruled homosexuality to be normal and a free choice, the government should constitute a seven-judge bench or a nine-judge bench to review it.

"It (Homosexuality) is against Hindutva, it is against all our scriptures and I will certainly continue to protest against it," he added.

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