Providing its input on the existing debate on the rights of the LGBT (Lesbians, Gays, Bisexuals, Transgenders) community, the Madras High Court recently stated that the Centre must consider according LGBT community special status and recognizing them as a separate group for safeguarding their rights, including the right of privacy.
“When more than 30 countries, including a conservative nation like Ireland, have decriminalized homosexuality and legalized gay marriage by way of referendum, getting 62.07% votes in favour, why not India decriminalize homosexuality?” Justice N. Kirunakaran asked. The Court was hearing two matrimonial discord cases involving a gay in one case and lesbian in the other.
The Judge expressed shock over non-consummation of marriages because either of the spouses was either gay or lesbian. He then impleaded the Union ministries of law and justice, and family welfare as parties to the proceedings, taking note of the growing incidence of same sex relationships in the country, and the adverse impact it had on families.
Justice Kirunakaran also opined that the Centre should conduct a survey or scientific study to ascertain the gay and lesbian population in the country.
The observation comes ahead of the open Court February 2 hearing by the Supreme Court of the curative petition challenging its January 28, 2014 verdict dismissing their review petitions on the ground that Section 377 is constitutional and applies to sexual acts irrespective of age or consent of the parties. A Bench of three senior most Judges, comprising Chief Justice of India T.S. Thakur, Justice A.R. Dave and Justice J.S. Khehar will be hearing a batch of eight curative petitions filed by Naz Foundation Trust and several eminent personalities, including film director Shyam Benegal.
On December 11, 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya, in Suresh Kumar Koushal and Anr v. Naz Foundation & Ors., had set aside the Delhi High Court judgment which had decriminalized gay sex among consenting adults in private. The apex court, while pronouncing the verdict, had said that it was for the legislature to look into desirability of deleting section 377 of IPC.
The Delhi High Court had on July 3, 2009 legalized homosexual acts between consenting adults by overturning the 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS. “We declare Section 377 of IPC insofar as it criminalizes consensual sexual acts of adults in private as violative of…the Constitution,” a bench headed by then HC chief Justice A P Shah. “As it stands, the section denies a gay person a right to full personhood…” the bench had added.
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