SC hearing on Section 377: What happened in court today

Additional Solicitor General Tushar Mehta, appearing for the Centre, told the Supreme Court today that the Narendra Modi-led government leaves the judgment on the constitutionality of Section 377 on the ‘wisdom of the court’.

Former Attorney General Mukul Rohatgi, appearing for the petitioners to quash Section 377 which criminalises gay sex, argued that the section violates human rights.

The counsel for the petitioners, while presenting their arguments before the top court today, said LGBTQ people deserved to be protected by the court, Constitution and the country. Menaka Guruswamy, appearing for the petitioners, argued that Section 377 violates Article 15 of the Indian Constitution as it discriminates of the basis of gender of the partners. She added, “It is based on Victorian morality that people should have sex only with opposite gender since sex is only for procreation." Guruswamy also added that Section 377 is denying the LGBTQ community “equal opportunity of participation”.

Also read: Explained: How the plea to quash Section 377 made its way to the Supreme Court again

To this, CJI Deepak Misra observed, "Any disqualification linked to Section 377 will be automatically lifted if provision is struck down."

Shyam Divan, another advocate for the petitioners, argued that Section 377 created “second-class citizens” and forced them to become “invisible” and go underground.

Senior advocate Arvind Datar, another counsel for the petitioners, put forth the argument that the Supreme Court’s judgment on ‘right to privacy’ had mentioned that “sexual orientation is an essential attribute of privacy” which makes Section 377 “ liable to be struck down."

The Supreme Court also observed that it will restrict to adjudicating on the constitutionality of the section with regard to consensual sex between adults. The Centre had urged the apex court to not deal with issues like gay marriage and property and inheritance rights, saying it will have many repercussions.

The Supreme Court has begun hearing curative pleas to quash Section 377 of the IPC which criminalises homosexuality. The law was first imposed by the British in 1860.