'As society changes, values change', SC told during Sec 377 hearing

New Delhi: “As society changes, vales change; what was moral 160 years ago might not be moral today, the Supreme Court was told on Tuesday during the hearing the petitions challenging criminalization of gay sex.

Senior advocate Mukul Rohatgi, who is appearing for one of the petitioners, added "Section 377 violates one's human rights. The issue deals only with sexual orientation and has nothing to do with gender."

Rohtagi further told the apex court, "This is a case of constitutional morality vs others. This case has a large ramification."

"Issue of gender and sexual orientation are two different things. These two issues should not be mixed up. This is not question of choice," the former attorney general said.

Senior advocate Arvind Dattar, who is also appearing for one of the petitioners, told the top court that 1860 Code was imposed on India and it did not represent even the will of the British Parliament.

He further said, “If Section 377 was enacted today, it won't withstand test of constitutionality.”

Following this, the court told him that he has to convince the bench that if a law like this was made now, it won't be sustainable.

Meanwhile, Additional Solicitor General Tushar Mehta, representing the Central Government, told the apex court that the government will file its response today.

The apex court on Monday refused to accept the request of the Centre seeking adjournment of today’s hearing by a Constitution Bench to revisit the 2013 verdict making gay sex illegal between two consenting adults.

A five-judge bench, led by Chief Justice Dipak Misra, comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, had stated: "It (the hearing) will not be adjourned... We will go ahead with the scheduled hearing... You file whatever you want during the hearing."

In 2009, the Delhi High Court had decriminalised homosexuality between consenting adults. The high court had stated that Section 377 was in violation of Articles 21, 14,and 15 of the Constitution.

However, the top court in 2013 set aside the order terming it as "legally unsustainable".

It must be noted that the UPA government did not file any affidavit giving its stand on the issue and a two-judge bench decided the matter in 2013 based on the Centre’s oral submissions. The present NDA government has also not taken any stand on this issue even though the matter is referred to a Constitution Bench.