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

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

The hearings in the challenge to Section 377 of the Indian Penal Code continued today in the Supreme Court for the second successive day.

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.

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

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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.

Another member of Pravritti said that a large number of their members have been involved in the ongoing struggle of decriminalising section 377. We can not celebrate it.

Supreme Court is hearing a bunch of petitions challenging a 158-year-old colonial-era law that criminalises gay sex. Tushar Mehta, appearing for the Centre, told the apex court, "We leave it to the wisdom of the court".

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The Indian Supreme Court said the high court had overstepped its authority and that the responsibility for changing the law rested with lawmakers not the courts.

Following which, several individuals came out with writ petitions and today during the hearing, the constitution bench clarified that it was not tagging the curative petitions with the present batch of pleas. A section of society must not live in a state of fear simply because of the choices they make, Chief Justice of India Dipak Misra had observed.

Opening his arguments, former Attorney General and senior advocate Mukul Rohatgi, appearing for a petitioner and dancer Navtej Jauhar, said he wanted a "declaration" from the apex court that the rights of those who formed sexual minority are protected under Article 21 (right to life and liberty) and the first issue would be to test the correctness of the 2013 judgement.

The court was not confining its ambit to LGBTQ or sexual orientation, it is looking into the aspect of two consenting adults who will not be liable for criminal action for their relationship.

The gay community was emboldened a year ago when the Supreme Court referred explicitly to the issue in a landmark ruling upholding the right to privacy.

Section 377 criminalises the very existence of LGBT persons by criminalising their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender.

The hearing will resume on Wednesday.

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