He or she can be from the same sex, says SC judge at hearing on Section 377 case

Choice of a partner is a person’s fundamental right, and it can be a same-sex partner, Justice D.Y. Chandrachud.

The observation came on the first day of hearing by a Constitution Bench of petitions challenging the constitutionality of Section 377 of the Indian Penal Code, a colonial era provision that criminalises private consensual sex between adults.

Justice Chandrachud drew his observations from the March 2018 judgment in the Hadiya case, which held that neither the State nor one’s parents could influence an adult’s choice of partner. That would be a violation of the fundamental right to privacy.

Hadiya, a Hindu girl from Kerala, converted to Islam and chose to marry a Muslim man.

Differing views

Chief Justice Misra said the test was whether Section 377 stood in conformity with Articles 21 (right to life), 19 (right to liberty) and 14 (right to equality) of the Constitution.

At one point, the judges appeared to differ in their approach to the case. Justice Chandrachud said the court should not confine itself merely to a declaration whether Section 377 was constitutional or not. It could examine the wider concept of “sexuality” to include co-habitation etc., he said.

But Chief Justice Misra observed that the Bench should first decide the constitutionality of Section 377. “Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge,” he said.

(Adapted from The Hindu)