The five-member bench, at the Supreme Court, which was dealing with the validity of Section 377 has reserved its verdict on a clutch of pleas challenging the constitutional validity of the same section. A five-judge Constitution bench headed by Chief Justice Dipak Misra allowed NGO Naaz Foundation to advance arguments in these cases.
It has been estimated that the verdict is likely to be released on October of this year, as Justice Misra would be retiring as CJI on that day. At the beginning of the hearing, the five-judge bench on July 10 had made it clear that it was not going into ‘curative petitions’ and would ‘adjudicate on the fresh writ petitions’ in the matter.
The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGO’s and individuals including Suresh Kumar Kaushal.
“The whole object of fundamental rights chapter is to strike down those laws which would otherwise not be struck down by majoritarian governments,” said Justice Rohinton Nariman “We won’t wait for majoritarian governments to enact or delete.”
The Centre did not take an absolute stand and left the decision on consensual gay sex “to the wisdom of the court”. Additional Solicitor General Tushar Mehta said the Union of India does not contest an individual’s right to choose a partner.
Section 377 is seen by many as an outdated moral legacy imposed by a colonial government more than a century ago. While the Muslim Law Board and the centre have resolved to not oppose the verdict of the SC it is yet to be declared at the end of the year. It will be a monumental moment in the history of India and its LGBTQ community to earn a fundamental status in constitutional terms. The constitution bench reserved its judgment on the petitions to free private homosexual acts between adults from criminality.
“They may enact, repeal or do whatever they want, but the moment we find that a law violates fundamental rights, we strike it down,” added Justice Nariman.