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  • Participants take part in a gay pride march in New Delhi June 28, 2009. About a thousand gays, lesbians, transsexuals and supporters participated in the parade.

    Participants take part in a gay pride march in New Delhi June 28, 2009. About a thousand gays, lesbians, transsexuals and supporters participated in the parade. | Photo: Reuters

Published 19 July 2018

Calling the law "Victorian-era morality" Justice Rohinton Nariman, also chimed in, agreeing to Justice Chandrachud, saying prohibitions have never resolved social issues.

In a big win for the LGBT rights in India, the Supreme Court bench hinted at going against the archaic Section 377, a Colonial-era law which bans homosexuality. 

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"All suppression is wrong." 

Justice D.Y. Chandrachud who is part of the five-judge bench led by Chief Justice of India Dipak Misra Tuesday pointed out that public acceptance of gay relationships will help meet health concerns and control the spread of HIV, Justice D.Y. Chandrachud told lawyers who argued in support of criminalising homosexuality, on Tuesday. 

"So heterosexual people do not transmit HIV?" Justice Indu Malhotra asked A senior advocate K. Radhakrishnan, for Trust of God Ministries that is rooting against striking down Section 377 IPC.

"The cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?" Justice Chandrachud asked lawyers supporting Section 377.

Activists have pointed out that Section 377 often leads to harassment and blackmailing of gay people since homosexuality is seen as illegal, the LGBT community said they also face severe discrimination when they seek jobs or housing.  

Calling the law "Victorian-era morality" Justice Rohinton Nariman, also chimed in, agreeing to Justice Chandrachud, saying prohibitions have never resolved social issues. “If you license prostitution, you control it. If you kick it under the carpet owing to some Victorian-era morality, it will only lead to health concerns. All prohibition is wrong,” said Justice Nariman, according to the Hindu, an Indian national daily. 

Earlier this month, Chandrachud also pointed out that choosing a partner was a person's fundamental right. "Our focus is not only on the sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21…we are dwelling on the nature of relationship and not marriage…we want the relationship to be protected under Fundamental Rights and to not suffer moral policing," he said. 

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India: Top Judge Challenges Colonial-Era Law, Affirms 'Choosing Partner a Fundamental Right'

Given the arguments put forth by the presiding bench members, new sources say there is a strong possibility that the Bench will declare Section 377  would violate Article 21 which provides the right to the LGBTQ community to sexuality, sexual orientation, and choice of sexual partner.

Justice Nariman said the whole objective of Fundamental Rights is to empower the court to strike down laws like Section 377. 

"We don’t wait for majoritarian governments to strike down the offending law. They may enact, repeal or do whatever they want, but the moment we find that a law violates fundamental rights, we strike it down," Nariman noted. 

In 2013, India squashed major gains won by LGBT activists by reversing the ruling which had decriminalized gay sex four years earlier.

The Indian homosexuality law, 'Section 377,' which falls under the section of "unnatural offenses" in the Indian Penal Code, IPC, bans "carnal intercourse against the order of nature with any man, woman or animal" that is widely interpreted as a reference to homosexual sex. 


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