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The hearing regarding the Constitutional validity of section 377 has resumed on Day 3 by the arguments of Shyam Divan, Senior Advocate. He argued that State is under an obligation to protect the rights of LGBT community under Article 14 of the Indian Constitution. He referred to Shayara Bano v. UOI, where both the aspect of Article 14 has been discussed, equality before law and equal protection of law. Under equal protection of law any action which is arbitrary must be struck down by the State in light of Article 14. Another case referred by him was West Bengal v. Anwar Ali Sarakar (1952), the following case stated any discrimination on the basis of sexual orientation is prohibited under Article 15(2). He also stated that right to intimacy must be included in Article 21 of the Constitution.
Justice Indu Malhotra stated that homosexuality is not an abnormality or unsoundness, but only a variation of sexuality, given that it transpires even among animals.
Chief Justice Dipak Misra tried to inquire about the statuary provisions that discriminate on the basis of sexual orientation. He found that Domestic Violence Act, 2005 applies only to heterosexual couples and adoption laws as well.
Justice Nariman stated that under section 30 of Mental Healthcare Act, the government is responsible to remove the stigma of society against homosexuals. The CJ to this states that the stigma LGBT community faces is worst then the criminalisation.
Krishnan Venugopal, Senior Advocate stated that section 377 restricts an alternate sexuality. He highlighted that homosexuals fears from going to the police station to lodge a complaint because of their sexual preferences.
The advocate in favour of section 377 stated that it should be struck down on the basis of public polls. To this CJ answered the Court functions on the principles of Constitution not on majorities opinion.
Advocate Manoj George, appearing on behalf of two Christian associations, stated that many bills regarding removal of section 377 has been introduced in the Parliament but got rejected every time. To this CJ dismissed all such claims as being irrelevant to the issue. He stated that the matter will be decided according to Part III of the Indian Constitution.
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