The Supreme Court of India finished hearing the arguments of all the petitioners in the case pertaining to constitutional validity of Section 377 and reserved its verdict. A five judge constitutional bench of judges, including CJI Dipak Misra, began hearing the arguments last week.
Petitioners arguing for reading down/repeal of Section 377 argued before the court that 377 violates various Articles of the Constitution – Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life). They had also pointed out that Section 377 was a pre-constitution law. They also cited the Privacy judgement, the NALSA judgement, and various international judgements to buttress their arguments.
The Central Government on its part, refused to take a stand on the issue and filed an affidavit stating that it will leave it to the wisdom of the court to decide the matter. It however requested the court not to go beyond examining the validity of Section 377, and it were to give out a verdict regarding the broader LGBTQ rights, it must give time to the government to file a response.
Those arguing to retain Section 377 told the court that homosexuality is the cause of AIDS, and such relations will lead to a break down of the moral fabric. They also argued that courts cannot add or delete to a statute, and that they take into account public morality and that Yogyakarta Principles could not be relied upon.
The judges, during the course of hearing, said that it is constitutional morality and not public morality that they are concerned with. Justice Nariman even remarked: “One may decide to enact, one may decide not to.. (the court) is not going to wait for a majoritarian government to protect the fundamental rights of the citizens.”
With the hearings concluding, the court has reserved its verdict.
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