[Breaking] Centre will not contest challenge to Section 377

An LGBT pride parade in New Delhi

The Narendra Modi government today told the Supreme Court that it will not be opposing petitions challenging Section 377 of the Indian Penal Code, which criminalises "unnatural sex" and in effect deems homosexual sex a criminal offence.

The five-judge Constitution Bench headed by Chief Justice of India Dipak Misra heard at length the petitioners' counsels who argued that the ambit of hearing be not just restricted to decriminalisation of homosexuality, but should extend to declaring that rights of the LGBT community are covered under Article 21. On the second day of the hearing of the petitions challenging the provision, Additional Solicitor General Tushar Mehta revealed that the Centre will not contest the challenge to Section 377.

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The court had agreed to review its 2013 decision which had upheld Section 377 of the Indian Penal Code. Section 377 IPC denies LGBT persons their rights 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 of India. They should get jobs on merit, but we can not allow them to celebrate.

"Rights that emanate for gender are much broader than rights of sexual minorities", he said, asking the petitioners to argue on matters related to inheritance and other rights if Section 377 is struck down.

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Mr. Mehta made it clear that if the court ventures into aspects like same sex marriage, etc, the Centre would respond with a detailed affidavit showing "legitimate State interest" after "wider consultations in the government". "The question here is whether Section 377 is ultra vires (beyond one's legal power) or not".

Yesterday, Senior Advocates Mukul Rohatgi and Arvind Datar made their submissions for the petitioners. Suppose your partner tries to sue you for some kind of right. or, say, file a case under the domestic violence act. such issues will be debated when a lis (issue) comes to court.

In taking up the petitions, the Supreme Court will look at reconsidering its judgement from 2013, when it set aside a 2009 order by the Delhi High Court decriminalising homosexuality.

"Section 377 of the IPC criminalises a core part of a person's identity exclusively on account of his or her sexuality and thus violates Article 21 of the Constitution".

Emboldened by the historic apex court judgment that declared privacy as a fundamental right in 2017, celebrities and prominent personalities filed a batch of pleas seeking to assert their right and choice of sexual orientation.

The arguments would resume on Wednesday.

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