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.
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.
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".
