A Constitution bench of the Supreme Court on Tuesday commenced hearing a clutch of petitions seeking repeal of the Section 377 of the Indian Penal Code which criminalises 'carnal intercourse against the order of nature' and thereby sexual relationship between persons of the same sex.
Headed by Chief Justice of India Dipak Misra and also comprising Justices Rohinton Fali Nariman, Indu Malhotra, DY Chandrachud and AM Khanwilkar, the bench said it will also examine the merits of its 2013 verdict that had set aside the Delhi High Court judgement decriminalising gay sex.
In 2009, the Delhi High Court had decriminalised Section 377, but the order was set aside in 2003 by an Apex Court bench which held that sexual relationship between persons of the same sex was a criminal offence.
Advocate Arvind Dattar, appearing for one of the petitioners, said, if enacted the law "won't withstand the test of constitutionality."
Dattar submitted that the 1860 Indian Penal Code was imposed on the nation and it did not represent even the will of the British Parliament.
"If Section 377 was enacted today, it won't withstand the test of constitutionality," Dattar said.
However, in response, the Constitution Bench asked Dattar to convince the Court that "if a law like this was made now, it won't be sustainable."
Dattar added, "If a person has a different sexual orientation, it can't be treated as a crime. This can't be treated as against the order of nature."
Additional Solicitor General Tushar Mehta, representing the Centre, told the Supreme Court that the government will file its response in the case later.
On the other hand, former Attorney General Mukul Rohatgi, also appearing for one of the petitioners, submitted that the issue deals only with sexual orientation and has nothing to do with gender.
He said, "Section 377 violates one's human rights. The issue deal only with sexual orientation and it has nothing to do with gender."
In May, the Apex Court had decided to hear the plea filed by Indian Institute of Technology's Lesbian-Gay-Bisexual-Transvestite alumni association seeking scrapping of Section 377 of the IPC.
Ashok Rao Kavi of Humsafar Trust, among others, had filed petitions against Section 377 on April 27 this year.
Categorised as an unnatural offence, consensual carnal intercourse between persons of the same-sex is termed 'against the order of nature' under Section 377 of the Indian Penal Code (IPC), and can be punishable upto 10 years imprisonment. (UNI)