Section 377: SC Says It Is An Individual’s Fundamental Right To Choose Their Partner Regardless Of Gender
- IWB Post
- July 11, 2018
On the first day of hearing of petitions challenging the constitutionality of Section 377 of the Indian Penal Code, the five-judge bench led by Chief Justice of India Dipak Misra said that neither the State nor one’s parents can influence their choice of partner. It is a fundamental right, and can include a same-sex partner, said Justice D.Y. Chandrachud.
In December 2013 the Supreme Court, in the Suresh Koushal case, had upheld Section 377 and dismissed the LGBT community as a negligible part of the population. It denied them the right of choice and sexual orientation.
“It is innate, inborn. Actually has something to do with the genes,” said Senior advocate Mukul Rohatgi as to be gay or lesbian is not a matter of choice. “This [being LGBT] is also an order of nature… because it is nature which gave them this,” he said. “Everything changes with the passage of time… Laws made 50 years ago can become invalid over time.”
As we know Section 377 is categorized under “unnatural offences” in the IPC. “What is unnatural? It can be between a man and a man and also between a man and a woman. Sex even between a man and woman, but not in the conventional way, also becomes unnatural under Section 377,” Rohatgi said.
Chief Justice Misra observed that the first thing to do was for the Bench to decide the constitutionality of Section 377. “The question here is whether Section 377 is ultra vires of the Constitution. Let us get out of this maze,” he said.
“As society changes, values change,” Rohatgi told the judges. “What was moral 160 years ago might not be moral today.”
The hearing is to resume today in the Supreme Court.
H/T: The Hindu