Will Strike Down Section 377 If It Violates Fundamental Rights: SC

Just a day before the judgment on Wednesday, the Supreme Court heard the petitions of the interveners today and reserved its decision on Section 377 which criminalizes homosexuality. The constitutional bench headed by Chief Justice of India Dipak Misra comprising Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said that it will strike down the law if it feels convinced that it violates the fundamental rights of a group of people.

The court had asked lawyers to submit their final written arguments by Friday for the apex court to make a clear decision.

Manoj George argues that homosexuality offends religious sentiments. CJI responds that one's dignity cannot be violated by another's sexual orientation #Section377

— Live Law (@LiveLawIndia) July 17, 2018

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Manoj George, who represented two Christian organisations argued that “homosexuality offends religious sentiments”. To this, CJI Dipak Misra responded by saying that “one's dignity cannot be violated by another's sexual orientation,” Live Law reported.

The moment we feel convinced there is a violation of any fundamental right, we will strike it down and not leave it to legislature.

George further contested in favour of Section 377 and said that the Parliament should decide on the matter and Justice Rohinton Nariman said, “The moment we feel convinced there is a violation of any fundamental right, we will strike it down and not leave it to legislature.”

“The whole object of fundamental rights chapter is to strike down those laws which would otherwise not be struck down by majoritarian governments,” Nariman added. “We won’t wait for majoritarian governments to enact or delete.”

Section 377 is to be retained for curbing spread of HIV. Shows a report from American society that says HIV is spread mostly through homosexual intercourse.

— Live Law (@LiveLawIndia) July 17, 2018

George then shifted the argument to discussing the Yogyakarta Principles and if we end up adopting it, then it would lead to recognizing homosexual marriage. But CJI Misra corrected him by saying the principles allowed people to live together as a family even without formal marriage. The Yogyakarta Principles is an international document on human rights in sexual orientation and gender identity.

George also said that homosexual intercourse spreads HIV, but the court said that legally recognising such acts would allow the state to spread awareness about the health of gay couples.

This was the fourth hearing that the SC had before pronouncing the judgment. The bench seems to be pro-LGBTQ community with their arguments and interest. It will finally announce its judgment on the case on Wednesday.

Picture credit: The Financial Express