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Section 377 Supreme Court hearing: ‘If enacted, it won’t withstand the test of constitutionality’, says laywer Arvind Datar

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New Delhi: As the Constitution Bench of Supreme Court continues to hear the pleas seeking scrapping of Section 377 of the Indian Penal Code (IPC) which criminalises homosexuality, advocate Arvind Datar said if enacted the law “won’t withstand the test of constitutionality.”

While appearing for one of the petitioners, Dattar submitted to the five-judge constitution bench of the Court that 1860 Code was imposed on India and it did not represent even the will of the British Parliament.

“If Section 377 was enacted today, it won’t withstand the test of constitutionality,” Dattar said.


However, in response, the Constitutional Bench asked Dattar to convince the star that “if a law like this was made now, it won’t be sustainable.”

Dattar added: “If a person has a different sexual orientation, it can’t be treated as a crime. This can’t be treated as against the order of nature.” Meanwhile, Additional Solicitor General Tushar Mehta, who is representing the Centre, told the apex court that the government will file its response in the case later in the day.

“I am in the process of discussing the issue, section 377 is a question of law,” Mehta said.

On the other hand, former Attorney General Mukul Rohatgi, who is also appearing for one of the petitioners, argued that the issue deals only with sexual orientation and that it has nothing to deal with gender.

He said, “Section 377 violates one’s human rights. The issue deal only with sexual orientation and it has nothing to do with gender.” In May, the apex court had decided to hear the plea filed by Indian Institute of Technology’s LGBT alumni association seeking scrapping of Section 377 of IPC.

On April 27 this year, Ashok Rao Kavi of Humsafar Trust and Arif Jaffar had also filed petitions against Section 377. Their plea came just six days after hotelier Keshav Suri, filed a plea in this regard in the top court. In response to Suri’s plea, the apex court on April 23 sought the Centre’s reply on the plea seeking scrapping of Section 377.

On a related note, the business tycoon last month tied the knots with his partner Cyril Feuillebois in Paris. Earlier in 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench. Categorised as an unnatural offence, consensual sexual intercourse between persons of same-sex is termed ‘against the order of nature’ under Section 377 of the Indian Penal Code (IPC), and can be punishable by life imprisonment.