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Eminent persons root for striking down Section 377, but SC disagrees

Saurav Datta | Updated on: 29 June 2016, 22:24 IST

Three persons - chef Ritu Dalmia, hotelier Aman Nath, and dancer and choreographer NS Johar - claiming a status to "eminence", have recently moved the Supreme Court demanding that gay sex be legalised. They have requested the court to strike down Section 377 of the Indian Penal Code, which criminalises such types of sexual intercourse.

While not outrightly rejecting the petition, a Division Bench of Justices SA Bobde and Ashok Bhushan, stated that they are inclined to deny any immediate relief and would rather refer the matter to a constitution bench (comprising five or more judges).

This comes on the heels of India's top court dismissing a review petition in the Suresh Koushal Case (2013) , but then India's chief justice has decided to refer the matter to a constitutional bench.

But when is the Bench to be constituted, and how it might decide, remains anyone's guess.

Because, the SC Bench, which dismissed the revision petition against the 2 July 2009 the Delhi High Court legalising homosexual sex, hinges upon the "morality" issue. The judges based their reasoning upon the presumption that allowing and legalising gay sex could lead to a surge in immorality.

Till date, India's apex court has been unable to conclusively define and establish what morality means, but that hasn't dissuaded it from giving decisions which goes against homosexuals.

In India, Section 377 has been increasingly coming in for criticism. Critics say that, framed 149 years ago, as relegating a significant section of the population to the zone of criminality and robbing them of their right to sexuality and sexual expression.

Now, there is of course the possibility, of same sex-couples being hounded by a judicial decision. See the US Supreme Court's ruling, and compare it with the Indian one. Because India's top court has never agreed to recognise the rights of homosexual people.

Forget about the institution of marriage, even sexual intercourse between consenting Indian adults is prohibited by law, and the men in khaki can arrest and persecute anyone.

With a court overburdened by questions of conventional, instead of constitutional "morality", the hopes for justice remain dim.

Edited by Aditya Menon

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First published: 29 June 2016, 22:24 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.