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As the debate over Article 377 rages on, the Centre has now put the onus on the Supreme Court to decide on the constitutionality of Section 377 of the Indian Penal Code that criminalises homosexuality in the country.
Section 377 of the IPC states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.
As the five-judge bench of the Supreme Court assembled on the second day to hear arguments for and against scrapping of Section 377, Additional Solicitor-General Tushar Mehta told the bench that the Centre won’t contest provision as regards to consensual sex between adults and is leaving it the decision for the Supreme Court. Mehta, however, sought clarification on bestiality.
The ASG further added that the government will have to file detailed reply if the top court goes into other aspects of the IPC section like civil rights and liabilities. “Please do not say anything which can be construed as affecting civil rights, inheritance, marriage rights etc,” Mehta urged the Supreme Court.
“Centre chooses not to take a stand and rather leave it to the “wisdom of the Court,” ASG Mehta was quoted as saying.
It may be recalled that in 2009, in a landmark judgment, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Following this, religious groups moved the Supreme Court for a direction against the verdict.
The Supreme Court in 2013 overruled the Delhi High Court’s order and reinforced criminalisation of homosexuality stating that Parliament’s job was to scrap laws. This judgment by the apex court was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.
In January 2018, the Supreme Court said a larger group of judges would re-consider the previous judgment and examine Section 377’s constitutional validity. Revisiting their 2013 verdict, the top court added that it will decide on the petition by five persons living in fear of being prosecuted. The Supreme Court had then said: “The section of people who exercise their choice should never remain in a state of fear.”
