India signals support for legalizing gay sex

LGBT+ rights campaigners at a Pride parade in Chennai

LGBT+ rights campaigners at a Pride parade in Chennai

The hearing comes nearly a year after the Supreme Court ruled that individual privacy is a fundamental right, a verdict constitutional experts say has a bearing on the homosexuality ban.

Airing the government's concerns, Mehta referred to Justice Chandrachud's observation made during the course of the hearing on Tuesday that in Hadiya judgement, that "we have already decided that the right to choose a partner is a fundamental right".

As it stands, Section 377 of the colonial-era law says whoever has carnal intercourse "against the order of nature" with any man, woman or animal, will be punished with imprisonment for life.

He also questioned the judgment in the Suresh Kumar Kaushal vs Naz Foundation case in which the Supreme Court had upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.

The court had agreed to review its 2013 decision which had upheld Section 377 of the Indian Penal Code. "Those are individual issues we can not pre-judge now", Chief Justice of India (CJI) Dipak Misra said.

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If the court determines that Section 377 violates the country's constitution, it would extend new LGBTQ protections across the world's second most-populous country.

ASG Mehta said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages.

He explained the impact of the supreme court overturning the 2009 ruling, saying: "We got calls from parents, concerned about what would happen to their children".

A five-judge constitution bench headed by Chief Justice Dipak Misra said it will examine the correctness of its 2013 verdict setting aside the Delhi High Court judgement decriminalising gay sex under section 377. We can not celebrate it. 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. "In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same with giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice", the Centre's affidavit said. "There is an element of gender in sexual orientation as well".

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 court will likely resume the hearing on Wednesday.

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