The Supreme Court said the right to sexual orientation is not a fundamental right but indicated that the right to choose a sexual partner is a fundamental right.
A five-judge constitution bench headed by Chief Justice Dipak Misra and also comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra was told by various petitioners that section 377 of the IPC violates various fundamental rights under articles 14, 15, 19 and 21 of the Constitution.
Advocate Saurabh Kripal, appearing for a petitioner resumed his arguments on challenge to the constitutional validity of section 377 and said that consensual sexual relationships between same sex is protected under Articles 14, 19 and 21 of the Constitution.
While referring to various verdicts, Kripal said that right to choose one's partner is manifest in Article 21.
Advocate Maneka Guruswamy, appearing for some students from all Indian Institute of Technology, said that the section 377 which criminalises gay sex violates Article 14, 15, 19 and 21 of the Constitution because there is discrimination on the basis of sex.
She said that the provision is a colonial era legacy and violates the fundamental rights of individuals enshrined in the Constitution.
"Section 377 is violative of Article 15 of Constitution because it discriminates on the basis of sex. It is based on Victorial morality and stereotypes an individual. Any kind of stereotyping is impermissible within the Constitution," Maneka said and added that apex court has always intervened whenever legislature has been inactive.