Supreme Court reserves verdict on Section 377 if it is going to violate the right of people. It won’t wait for the majoritarian government to act
On Tuesday (17/07/2018) A bench of Chief Justice Dipak Misra, RF Nariman J., A M Khanwilkar J., D Y Chandrachud J. and Indu Malhotra refused to leave the decision of section 377 on parliament.
Previous hearing of the case
During the earlier trials, the petitioner argued that the provision — intercourse against the order of nature — is an outcome of Victorian morality and should be struck down as values change along with society. The apex court also added that the hearing pertains only to the issue of gay sex and that it would not venture into the issue of marriage relating to the LGBTQ (lesbian, gay, bisexual, transgender and queer) community or inheritance in live-in relationships.
Recent findings of the court
The court said that it would scrap down section 377 if the court finds that it is violating fundamental rights of the people. The Moment court finds it out court has the power to strike it down irrespective of the majoritarian government’s ability to reveal.
“We cannot wait for a majoritarian government to decide on enacting, amending or striking down a law if it violates fundamental rights. Majoritarian governments are concerned with their votes,” Justice R.F. Nariman said.
Public acceptance of people in gay relationships will help meet health concerns and control the spread of HIV, Justice D.Y. Chandrachud told lawyers who argued in support of criminalizing homosexuality, on Tuesday.
Unconsentual Gay Acts
There were many arguments against decriminalizing section 377. Advocate Manoj V. George, who was representing Christian organization was concerned about consensual gay sex and judges replied
CJI said “We are only on consensual acts… Consent is the fulcrum… Your enjoyment cannot offend the dignity of others.”
“Even if we legalise gay sex and decriminalize Section 377 of the IPC, non-consensual gay sex and bestiality would continue as offences under Section 377,”
By this Friday (20 July 2018), all the counsels that appeared in the case whether for or against the law are asked to submit their written statement.
The current position of section 377
According to section 377 if anyone now is found having sexual acts which are against the law of nature (vaginal and penal sex) is said to have commented a crime. The punishment for such actions can even be life imprisonment.
A sign of hope for LGBTQ community
The Centre last Wednesday (11.07.2018) put the onus of deciding the fate of section 377 on the supreme court. The decision on the matter will come around in one month, but it seems that judges are going to scrap of the section for good.
“The moment we are convinced about violation of the fundamental right, the object of these fundamental rights give power to the court to strike down the law,”
Justice Chandrachud said it was “always better to recognise sexual orientation so as to allow people access to healthcare with dignity” “If you suppress sexuality, it will lead to suppression and there would be no treatment for a lot of diseases like HIV, AIDS and STDs (sexually transmitted diseases),”
There were some questions asked by the judges that clearly shows the broad mindset of judges
“The cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?”
So heterosexual people do not transmit HIV?”