Challenge to Section 377: SC frowns on Centre’s delay in filing response

KK Venugopal

The court ruled privacy was a fundamental right of all Indians, adding that sexual orientation was an essential attribute of privacy.

The only question, therefore, which is referred for the consideration of larger bench is the question of constitutional validity of criminalizing "consensual acts of adults in private" falling under Section 377 of the Indian Penal Code and no other questions fall for consideration of this Hon'ble Bench as evident from the order of reference.

The bench, led by Chief Justice of India Dipak Misra, however, refused and listed it for today. Let us get out of this maze. They should get jobs on merit, but we can not allow them to celebrate.

"We want them to have a normal economic life. I am not appearing now as the Attorney General", he told.

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

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The bench, which also included Justices R.F. Nariman, A.M. Khanwilkar and Indu Malhotra, on Tuesday commenced hearing a batch of petitions and cross-petitions for and against the section. 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. "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not". Suppose your partner tries to sue you for some kind of right. or, say, file a case under the domestic violence act. such issues will be debated when a lis (issue) comes to court.

The apex court in its privacy judgment held that "discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. We can not have an advanced ruling". Even the Centre had at that time favoured retention of the provision in the IPC as penal offence.

Anwesh Pokkuluri, along with 19 others who are present and former students of IITs across the country, had moved the Supreme Court in May which sought to challenge the constitutional validity of section 377. The CJI said, "Live-streaming and recording of court proceedings will help the public know instantly about the important developments in the court". 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. "Moreover, homosexuality is not a disease".

The arguments would resume on Wednesday.

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