SC hearing on gay sex

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Going by the sequence of events that have been unfolding with the ongoing hearing before a 5-judge Constitution Bench of the Supreme Court, there are indications of a better understanding on the need for equal constitutional protection to all individuals without any discrimination. This is the main reason to believe that consensual gay sex may once again be decriminalised after a long wait of four years. Now as the situation appears to have changed with the developments taking place around the world on this issue, all individuals may be protected without any discrimination that was the case in 2013, when a two-judge Bench refused to read down Section 377 of the Indian Penal Code on the argument that homosexuals constituted only a ‘miniscule minority’. In this context, this is worth noting that same sex marriages by politicians and ruling the countries in some of the European continent and elsewhere on this planet may impact the change of mind in the Indian sub-continent. Not only that, the same sex relationship have got the constitutional protection in some of the countries and the movement of equal rights impacted the society in India as well. As such the Centre is cautiously supporting the cause, but it has stopped short of taking a categorical position. By leaving it to the Supreme Court’s wisdom to decide on the constitutionality of Section 377, the government has indicated that it is not opposed to the decriminalisation of same-sex relationships as long as these are limited to consensual acts between adults in private. At the same time, its position is hedged against the possibility that the Constitution Bench, currently reconsidering the court’s 2013 judgment upholding the validity of Section 377, may venture into other rights for the LGBTQs relating to marriage and inheritance. In the event of the court going into issues and rights that are not slated for reconsideration, it wants to file a detailed counter-affidavit spelling out its stand. There are certain voices being raised by some in the ruling party that same sex marriages may prove to be a threat to the national security and country’s integrity. But this appears to be a by-product of a regressive thought-process of fringe elements, who have yet to understand how the nature shapes the diversity even in human evolution over the last millions of years. These very fringe elements are the ones calling for more medical research into the field to correct the anomalies of the nature without realising what their comments amount to. Some of the observations by the judges of the Bench, including the Chief Justice of India, indicate that SC is now focussing only on Section 377. It is noteworthy that at least one judge has observed that the question involved was not only one relating to sex, but the right to life and the right to privacy of those in such relationships. The ongoing hearing is taking place against the backdrop of a nine-member Bench’s verdict last year in Justice KS Puttaswamy vs Union of India, which said “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. Thereby meaning that a whole gamut of rights flowing from the decriminalisation of homosexual relationships must be examined, if not now, then at least as and when they arise. Obviously worried about the reaction of some religious and conservative sections if homosexuality is decriminalised, the centre has sought to dissuade the court from going into other related rights. Its apprehension, perhaps, is that once homosexuality is no more an offence, it may lead to demands to legalise same-sex marriages and inheritance by survivorship among gay partners. While the current focus is on the urgent need to overturn the retrograde judgment of 2013 in Suresh Kumar Koushal, the extension of constitutional rights to citizens, irrespective of gender and sexual orientation, is long overdue. The court also has a responsibility to ensure that such individuals enjoy protection like their counterparts in other parts of the world where they have been recognised as humans and whatever be their sexual orientation, they are not at fault.