Campaigner: ‘Legalising gay sex in India would threaten national security’

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Thursday was the third day of hearing on the issue of striking down the 150-year-old colonial law on the ground of discrimination.

"We leave to the wisdom of the court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults", the Press Trust of India news agency quoted Mehta as telling the five justices hearing the issue.

The bench said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it chose to strike down the penal provision, then it would remove "ancillary disqualification" of LGBTQ community members which can join the services, contest elections and form associations. The stigma is so because they are treated differently. After the decriminalisation of Section 377, the LGBT community members can freely contest elections without inhibitions.

Shyam Diwan, senior advocate began his argument stating that the time has come to declare "Right to Intimacy" as a part of "Right to Life" under Article 21 of the Constitution of India.

However, the Supreme Court reversed the High Court order in December 2013 and said that those indulging in gay sex will be prosecuted and sentenced under Section 377.

Referring to Justice Chandrachud's observation on Tuesday that right to choose a partner would also include right to choose partner from the same sex, the ASG said, "This may encourage other forms of sexual perversions such as incest, and relationships within the prohibited degrees and between "sapindas", which are restricted under the Hindu Marriage Act".

"It (homosexuality) is not an aberration, but a variation", Justice Malhotra said while pointing out that homosexuality existed in other animal species as well. This community feels fear in going to get medical aid. "This is a serious violation".

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Advising against accepting the argument of "natural orientation" advanced by petitioners on a previous hearing to decriminalise homosexuality, additional solicitor general of India, Tushar Mehta, cautioned the court saying that it may lead to a possible challenge to prohibition against incestuous and marriages with cousins under personal laws.

Justice J Chandrachud added, "We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under Section 377".

Referring to the provision of the Mental Health Care Act, the bench said "it also recognises the fact that such persons can not be discriminated against on the ground of sexual orientation".

"We left the matter to the Supreme Court. Moreover the government's position of leaving the court to decide on the issue is significant", Anjali Gopalan, executive director of Naz Foundation, an NGO working to prevent HIV/AIDS, told DW.

The illegality attributed to homosexuality because of Section 377 has serious ramifications, the court said.

CJI Dipak Misra remarked,"If there are service conditions prohibiting LGBT and transgender people in services it will go once we hold Section 377 unconstitutional..."

However, the decision to let the courts decide on the code's legality suggests that it will not resist if the law is repealed. Bharatanatyam dancer Navtej Singh Johar, journalist Sunil Mehra, internationally acclaimed chef and restaurateur Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur are among some of the petitioners demanding scrapping of Section 377.

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