New Delhi, July 10: The Supreme Court will continue hearing the petition challenging Section 377 of the Indian Penal Code today. Under challenge is the criminalisation of gay sex, which the Supreme Court had decided to review.
Arguing for the petitioners, senior advocate, Mukul Rohatgi on Tuesday said that the SC must declare that the rights of the gay community is protected under Article 21. He said that being gay or lesbian is not a matter of choice. It is innate, inborn and actually has to do something with the genes.
Section 377 IPC uses order nature, but this is also an order of nature because nature gives you this, he said.
Meanwhile additional solicitor general Tushar Mehta told the court that the government would file its response today.
During the course of the arguments the judges discussed how this issue needs to be addressed. The court sought to know whether it should first decide on the constitutional validity of Section 377 and then go into the fundamental rights of an individual.
Chief Justice of India, Dipak Misra said that the question is whether Section 377 is ultra vires or not. Let us get out of the maze first. We cannot give advance rulings to questions like inheritance to live-in partners, whether they can marry or not etc. These are individual issues and we cannot pre-judge a law, he also said.
Rohatgi however told the Bench that the life of those as a sexual minority needs to be protected. Do not restrict the hearing to just Section 377. Our lives are passing by and how many of us can come on individual issues later, he also said.
Five from the lesbian, gay, bi-sexual, transgender and queer (LGBTQ) community had sought a review of the SC decision.
They said that they live in fear of the police because of their natural sexual orientation and preferences.
In 2013, a three judge Bench had upheld the validity of Section 377, which criminalises gay sex. After this was challenged in a review, the matter was referred to a Constitution Bench of the Supreme Court.