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Section 377: Government To Submit Stand On Gay Sex And Decriminalising Section 377 As Supreme Court Hearing Continues. All Updates Here

Written By Ankit Prasad | Mumbai | Published:

Hack:

  • The government is likely to submit its stand on homosexuality and decriminalising Section 377 in the Supreme Court on Wednesday
  • The constitution bench is to continue hearing petitions against Section 377
  • On Tuesday, the apex court had set a fast clip to proceedings

The government of India is likely to submit its stand on homosexuality on Wednesday as the Supreme Court resumes its marathon hearing over whether or not Section 377 of the Indian Penal Code (IPC), which holds gay sex as an offence, should be decriminalised.

THE GOVERNMENT'S STAND

On Tuesday, a Constitution bench comprising Chief Justice of India Dipak Misra and Justices Nariman, Khanwilkar, Chandrachud and Malhotra had made clear that their primary goal was to deal with the constitutional validity of Section 377, with other matters that arise from the issue, such as marriage, to be dealt with as and when they arise. They had insisted on arguments on the case beginning immediately and set a fast pace, seeking the government's stand. 

Section 377: As Modi Government Makes Stand Official, Here's Why Today's Supreme Court Hearing Is Important

On Monday, the government had sought more time to file its response, but Chief Justice Dipak Misra refused to delay the matter by saying that it was long pending. "We will go ahead with the scheduled hearing. We will not adjourn it. You file whatever you want during the hearing", the bench had said. 

READ | Attorney General KK Venugopal Spills The Beans On The Modi Government, Suggests That The Govt Will Back The Section 377 in Court

As per sources, written submissions of the government have been prepared. The government is in touch with ASG Tushar Mehta in the matter and consultations with the PMO are also taking place. The stand is likely to be made clear post-lunchtime on Wednesday.

THE BENCH'S VIEW ON THE 2013 JUDGMENT

During the hearing on Tuesday, as the constitution bench heard a batch of petitions against Section 377, the 2013 judgment of the Supreme Court that had criminalised it had been referred to as a "mess". On 8 January 2018, a three-judge Supreme Court bench decided to revisit the 2013 verdict of the Supreme Court which refused to strike down Section 377 thereby essentially allowing the state to interfere in matters of personal choice and sexual orientation. The 2013 verdict had set aside the Delhi High Court's 2009 order decriminalising Section 377.

The three-judge bench, while making its decision to refer the matter to a five-judge bench said, "Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench". 

WATCH: Here's What The Judge Who Criminalised Section 377 In 2013 Had To Say

The constitutional bench will hear as many as six petitions and interventions which were filed by the NGO Naz Foundation, 'Voices Against 377' human rights activists and parents of queer children. The hearing in the case will see as many as 35 individuals petitioners before the court to demand that the colonial anti-LGBT law is struck down in India. Former Attorney-General Mukul Rohatgi is among the senior lawyers representing the petitioners, while ASG Tushar Mehta is representing the government.

WATCH: Section 377 Completely Invalid: Former Attorney General Mukul Rohatgi

RECENT JUDGMENTS GIVE HOPE TO LGBT COMMUNITY

The timing of the Section 377 hearing being kicked off is of immense significance. The present hearing the case comes in the backdrop of the historic NALSA (National Legal Services Authority vs Union of India) verdict in 2014 which recognized the third gender in India, as well as the historic Right to Privacy verdict, wherein Right to Privacy was upheld as a fundamental right, was delivered by the Supreme Court last year.

Giving heart and hope to the LGBT community, right after the Right to Privacy verdict,  Retd. Justice AP Shah who had delivered the Delhi Court verdict striking down section 377 said “There is very little scope now for those wanting to support Section 377. The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]. But invading the bedroom can’t be considered reasonable restriction”.

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