Although ASG Mehta requested the court to restrain itself from adjudicating on the possible impact of decriminalisation of homosexuality on marriage and inheritance and requested them to stay away from making judgements on the same.
New Delhi: Today was the third day of reading down Section 377 in Supreme Court and a lot was said about a weak three-page affidavit filed by the Union of India. Additional Solicitor General Tushar Mehta told the five-judge constitution bench that the Centre will leave the matter of the constitutionality of Section 377 to ‘the wisdom’ of the Apex Court. The Centre said it has no objection with the court dealing with the validity of this penal provision.
“So far as the constitutional validity of Section 377 to the extent it applies to ‘consensual acts of adults in private’ is concerned, the Union of India would leave the said question to the wisdom of this Hon’ble Court,” one of the points, in the affidavit filed on the behalf of the Centre, said.
The government said that a determination would have far-reaching and wide ramifications under various other laws, as a reply to “any other question other than the constitutional validity of Section 377 of the Indian Penal Code”, including determination of “right in favour of or in respect of lesbian, gay, bisexual, transgender and queer (LGBTQ.)"
“Additional solicitor general of India, Tushar Mehta, also cautioned the court against accepting the argument of “natural orientation” advanced by petitioners on a previous hearing to decriminalize homosexuality, saying that it might lead to a possible challenge to prohibition against incestuous and sapinda relations (cousin marriages in Hinduism) under personal laws,” reported Livemint.
Mehta further requested the court to restrain itself from adjudicating on the possible impact of decriminalisation of homosexuality on marriage and inheritance and requested them to stay away from making judgements on the same.
“The ASG further added that the government will have to file a detailed reply if the top court goes into other aspects of the IPC section like civil rights and liabilities. "Please do not say anything which can be construed as affecting civil rights, inheritance, marriage rights etc," Mehta urged the Supreme Court” reported Firstpost.
SC may strike down punitive measures
Things are looking positive for the LGBTQ community as the SC appears to agree with them. On the second day of the hearing, said, “Hearing arguments by counsels on the second day of the hearing, Chief Justice of India Dipak Mishra observed, "Once the court decriminalises Section 377, then the discrimination faced by the LGBT community in employment or choosing any vocation will vanish. After the decriminalisation of Section 377, the LGBT community members can freely contest elections without inhibitions. This will help to awaken the society and help the LGBT community to live life to the fullest.”
One of the observations made by the top court said, "Section 377 is the infrastructure for denying rights. Once it falls, other rights will be realised".
Although Justice Indu Malhotra’s views on bisexuality were misinformed, she realised how Indian social expectations can force gay people into heteronormative marriages. “This community feels inhibited to go for medical aid due to prejudices against them. Because of family pressures, societal pressures etc. they are forced to marry the opposite sex and it leads to bi-sexuality and other mental trauma. It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behaviour; It is not an aberration but a variation,” she said.
The matter is being heard by a Constitution Bench of Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
Timeline of the battle against Section 377
2018: Navtej Johar petition assigned to Constitution Bench; fresh petitions filed by NGOs, IIT students and alumni, and activists. Hearings begin in front of a five-judge bench.
2016: Curative petitions referred to Constitution Bench; Two fresh petitions from LGBT persons, including Navtej Johar and Others vs Union of India challenging Section 377 filed.
2014: Curative petitions listed; SC delivers NALSA judgement recognising the rights of transgender persons.
2013: Global Day of Rage demonstrations organised in over 30 cities worldwide to protest against Section 377.
2013: Supreme Court strikes down Delhi high court judgment.
2009: Delhi HC says Section 377 does not apply to consenting adults; Astrologer Suresh Kumar Koushal, and 15 others challenge this order in SC; Parents, academicians, and mental health professionals intervene in favour of LGBT persons.
2006: Supreme Court direct Delhi high court to hear the case; Voices Against 377, a coalition of human rights groups joins petition; Several LGBT persons file affidavits.
2004: Delhi high court dismisses the case.
2001: Naz Foundation files petition challenging the constitutionality of Section 377.
1998: Women’s groups protest after right-wing organisations force cinemas to stop screening Fire, a film that depicted a lesbian relationship.
1994: Aids Bhedbhav Virodhi Andolan files petition against Section 377. Petition lies comatose.
SC to start hearing petitions to read down Section 377