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The debate regarding the same sex marriage has always been an issue in several countries. The bench of the SC took this matter and detailed discussion was held by Justice Chandrachud. Senior counsel Arvind Datar traced the history of homosexual laws in different countries including India. He referred to the statement given by former Justice of the Australia, where he referred to old testaments stating “ if a man … lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon you.” Various case laws has been referred by him, they are as follows:
Lawrence v. State of Texas
The judgement was rendered that Texas law criminalising homosexuality is against the due process of law. To this the advocate submits that with the rise of 20th century the tolerance regarding homosexuality has been increased in the America. The government which earlier prohibited the employment of homosexuals are now making laws to prevent discrimination against homosexuals.
Suresh Kumar Kaushal case
In this case on the basis of Article 372 of Indian Constitution, it was held that since Parliament does not amended the section 377 of IPC, after the recommendation of the law commission in its 172nd report, hence section 377 of IPC is Constitutional. The counsel argues that this cannot be the sole ground for criminalising homosexuality, as at that time Legislators were finding reasons to not delete the section 377 of IPC.
According to the advocate, section 377 of IPC does not criminalise an act or omission instead it criminalises a certain part of a society. He laid emphasis on the purpose and meaning of the punishment. To which he answered that the purpose of awarding punishment is to deter the offender from repeating such activities. What about the natural orientation which occurs at adolescence, hoe can it be stopped by awarding punishment.
El- Al Israeli Airlines Ltd. v. Jonathan Danielowitz
The airlines gifted free aeroplane coupons to its permanent employees and their partners. The first respondent was denied the free aeroplane coupons to his partner on the basis of his sexuality. Vice President A. Barrack had stated that discrimination against homosexuals and lesbians is improper.
Case of Dudgeon v. The UK (1981)
The provisions criminalising certain homosexuals act between consenting adults, in Northern Ireland was examined. In this case it was held that the tolerance and understanding regarding homosexuals has increased in people. There are changes which have already taken place in domestic laws of the several European countries, hence criminalising homosexuality must be struck down.
The counsel stated that Part III of Indian Constitution provides fundamental right which includes right to live under Article 21. Under right to live, right to privacy has also been recognised, privacy to sexual life and making choice regarding their partners still has to be recognised. Article 14 provides security to transgender but unfortunately does not recognises the right of homosexuals.
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