Madras HC asks pertinent question: Why should India not decriminalise homosexuality?
The judge also sought to know whether the Centre had taken any decision on deletion of Section 377 of IPC.
PTI| Monday, February 1, 2016 – 08:18

The Centre must consider granting LGBT (Lesbians, Gays, Bisexuals, Transgenders) people a special status and recognise them as a separate group for safeguarding their rights, including right of privacy, the Madras High Court said.

The court order came ahead of the hearing by the Supreme Court in an open court on February 2 which is a curative petition of gay activists challenging its verdict criminalising homosexuality in the country.

In his recent orders on two matrimonial discord cases involving a gay in one case and lesbian in the other, Justice N Kirubakaran said lack of statutory protection for LGBT people has started affecting the very social institution of marriage.

“When more than 30 countries, including a conservative nation like Ireland, have decriminalised homosexuality and legalised gay marriage by way of referendum, getting 62.07 per cent votes in favour, why not India decriminalise homosexuality?”, he asked.

“Why not the central government amend marriage laws to include the homosexuality as valid ground for divorce, as gays and lesbians cannot exhibit interest on the opposite sex which is required for consummation of marriage”.

The Centre, which was directed to file its response by July last year, is yet to file the affidavit.

When sexual orientation exhibited by majority persons was accepted by all, why not the sexual orientation of a section of people be recognised (statutorily), as they have different expression of human sexuality, the judge asked.

“Could LGBT be considered as offenders merely for having exhibited their natural sexual orientation and their sexual acts, which are different,” the judge wondered and said he was “shocked” to notice non-consummation of marriages because either of the spouses was either ‘gay’ or ‘lesbian’.

Taking judicial note of wide prevalence of same sex relationships in the country, and the adverse impact it had on families, the judge impleaded the union ministries of law and justice and family welfare as parties to the proceedings.

By a separate order, he also made the law commission of India also a party to the case.

The judge also sought to know whether the Centre had taken any decision on deletion of Section 377 of IPC (unnatural offences) from the statute book, as suggested by the Supreme Court in Sureshkumar Koushal vs NAZ Foundation case, or whether it proposed to amend the section by introducing a provision to clarify that nothing contained in the clause should apply to any sexual activity between two consenting adults in private as per the 2009 Delhi High Court judgement.

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