[Breaking] Centre will not contest challenge to Section 377

Lawyers for the petitioners challenging the law said the homosexuality rule- dating from 1861 when India was under British

Lawyers for the petitioners challenging the law said the homosexuality rule- dating from 1861 when India was under British

The Supreme Court on Tuesday said it will examine the correctness of its 2013 verdict that upheld a law called Section 377 that criminalises consensual gay sex. This, petitioners claim is a direct violation of Articles 14, 15, 16, 19 and 21 of the Constitution which guaranty Indian citizens various fundamental rights like freedom of expression, equal protection of the law, equality of opportunity and personal liberty.

The bench, comprising justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said it had already made it clear on Tuesday that only the constitutional validity of Section 377 will be dealt with by it.

"What is the order of nature in 1860 can't be the order of nature today".

"The question here is whether Section 377 is ultra vires (unconstitutional) or not".

Emboldened by the historic apex court judgment that declared privacy as a fundamental right in 2017, celebrities and prominent personalities filed a batch of pleas seeking to assert their right and choice of sexual orientation. According to BuzzFeed News, the Supreme Court argued in that ruling that India's LGBTQ community was small relative to the country's population and that few people had ever been prosecuted under Section 377.

Section 377 of the penal code, a relic from 1860s British legislation, bans gay acts as "carnal intercourse against the order of nature" and allows for jail terms of up to life, although prosecutions are rare.


CJI Dipak Misra, in early 2018 made a decision to pull-out petitions filed over two years ago by renowned dancer Navtej Singh Johar, journalist Sunil Mehra, celebrity chef Ritu Dalmia, historian Aman Nath and businesswoman Ayesha Kapur.

The constitution bench is due to hear two pleas filed by six prominent personalities challenging Section 377.

When the CJI said "we may begin this experiment from hear, the A-G K.K. Venugopal agreed and said the experiment must start soon from the CJI's court and depending upon its functioning for a month, it can be extended to other court halls in the apex court". The Central government is represented by Additional Solicitor General Tushar Mehta.

A bench headed by Chief Justice Dipak Misra refused to defer the hearing after the Centre sought more time to file its response on PILs on sexual acts that are deemed "unnatural" under Section 377.

It, however, said the court should specify that the right to choose a partner should not extend to perversions like incest. Counsel for the petitioners will continue with their submissions today.

Section 377 criminalises the sexual expression of adults belonging to the LGBTQ community and also penalises non-penile-vaginal sex between consenting heterosexual-identifying adults. It denies LGBT persons, their right to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution.

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