The Supreme Court had re-criminalised gay sex in 2013 (File)
A clutch of petitions challenging criminalisation of consensual gay sex will be examined by a five-judge constitutional bench of the Supreme Court, beginning today. This was after the Supreme Court rejected the Centre's plea to postpone the proceedings. The bench comprising Chief Justice Dipak Misra, Justices R F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra will hear several petitions against Section 377 of the Indian Penal Code, which criminalises homosexuality. In 2013, the Supreme Court had overturned a Delhi High Court judgement, criminalising consensual sex between two consenting adults of the same sex.
The Supreme Court had agreed to reconsider its 2013 verdict in January this year, saying the section of people who exercise their choice should never "remain in the state of fear". The court also observed that the the determination of the order of nature was not a constant phenomenon as social morality changed from age to age.
Hearing of pleas seeking scrapping of Section 377 to continue tomorrow: news agency ANI
Senior advocate Arvind Datar says, "In August last year, a Supreme Court constitution bench said privacy is a fundamental right. The moment that judgement came, it eclipsed Section 377".
Arvind Datar said homosexuality cannot be a crime. He says, "It is part of natural orientation of a man. How can it be a crime? This is orientation of man and it can never be a crime".
Justice DY Chandrachud says,"It is presumed pre-independence laws are constitutionally valid".
Chief Justice Dipak Misra says, "If we go by your view then entire pre-independence laws are not valid. Is there any judgement of this court on pre-independence laws?"
Senior Advocate Datar says no.
Senior advocate Arvind Datar says," Post Constitution laws are manifest of the will of people and the will of parliament. Section 377 didn't represent the will of parliament".
Senior advocate Arvind Datar calls Section 377 a pre-constitutional law. "There is no basis for keeping Section 377," he said.
Mukul Rohatgi's arguments are over. Senior Advocate Arvind Datar is arguing for a petitioner
Mukul Rohatgi argues ,"We want to go beyond Section 377 and want declaration of our rights".
The Centre opposed Mr Rohatgi's demand. Tushar Mehta says "Petitioner can't go beyond Section 377. That's why we wanted time to file our response".
Mukul Rohatgi responds,"We can't be restricted to argue only Section 377. We will go behind that".
CJI Dipak Misra says,"Today we are only focusing whether Section 377 is ultra wires or not. Other things will follow after we decide. There can't be advance ruling".
CJI Dipak Misra to Centre:"You can argue without affidavit also".
"We wanted time to file affidavit," says ASG Tushar Mehta.
Mukul Rohatgi says, " The Ministry Of Home Affairs and the health ministry took a different stand before the Delhi High Court. The Centre didn't file its affidavit and didn't file appeal. So the Centre's stand is clear as daylight."
The Chief Justice Of India Dipak Misra said the Supreme Court was only examining the correctness of the 2013 verdict that set aside the Delhi High verdict, which quashed Section 377
Senior counsel Mukul Rohatgi said the law valid 50 years ago goes invalid because society has changed
The Supreme Court's privacy judgement talks about sexual freedom and this means the court is approving the Delhi High Court verdict, argues Mukul Rohatgi
Mukul Rohatgi to Supreme Court: "This is not a matter of choice and it has something to do with genes". He further adds, "Our sexual orientation has nothing do with the gender issue."
Senior counsel Mukul Rohatgi, while arguing for one of the petitioners, said, "We want a declaration to protect our rights. We are in a sexual minority."
The Supreme Court on Monday rejected the central government's plea for adjourning the scheduled hearing
"We hope things will work well this time. When the law is a certain way for everybody then why does it have to be different for us alone? The way we are is not unnatural": Jaya, an LGBT activist, told news agency ANI.
A five-member constitution bench of the Supreme Court has begun hearing the pleas, seeking scrapping of Section 377, which criminalises homosexuality.