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SC says it would focus on the question of decriminalising section 377, but refuses to examine wider issues

Team SoOLEGAL 11 Jul 2018 11:00am

SC says it would focus on the question of decriminalising section 377, but refuses to examine wider issues

Supreme Court on Tuesday said that it would only focus on deciding the constitutional validity of Section 377 of the Indian Penal Code (IPC), but the top court declined to examine wider issues relating to LGBTQ rights.

The constitution bench lead by CJI Dipak Misra, also including Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while hearing a batch of petitions relating to same-sex relationships said,

The question here is whether section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to (same sex) live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now”.

Section 377 was first challenged in the Delhi High Court. The HC read down the provision in 2009 only to be reversed by a two-judge bench of the apex court in 2013 in the Suresh Kumar Koushal vs Naz Foundation case.

The SC bench observations came, when former attorney general Mukul Rohatgi, advocates Arvind Datar and Saurabh Kirpal representing the petitioners argued “for not only making Section 377 decriminalised but also demanded a clear enunciation on the right to choose same-sex partners”.

Following senior counsel Rohatgi’s submission, the bench said,

We will deal with the constitutional validity of Section 377 alone. Whatever rights or disputes that are linked to relationships between same-sex partners as a consequence of the Supreme Court’s determination of the constitutional validity of Section 377 will be dealt with as and when they arise. We cannot give an advanced ruling on such future consequences to our ruling on Section 377”.

Additional solicitor general Tushar Mehta, appearing on behalf of the central government, agreed with the court and said that the Centre was also of the view that the arguments should only be restricted to the issue relating to validity of Section 377.



Tagged: Supreme Court   Section 377   Indian Penal Code   LGBTQ Rights   Same Sex Relationships   CJI Dipak Misra   Additional Solicitor General Tushar Mehta   Central Government   Mukul Rohatgi  
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