Sec 377: Centre leaves decision to SC’s ‘ wisdom’
The Union government on Wednesday decided to leave it to the “wisdom of the Supreme Court” on declaring Section 377 of the Indian Penal Code, which criminalises consensual gay acts of two adults, as unconstitutional or not. Additional solicitor- general Tushar Mehta made this submission before a five- judge Constitution Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, A. M. Kanwilkar, D. Y. Chandrachud and Ms Indu Malhotra, which is hearing a batch of petitions on the validity of Section 377.
At the outset CJI Dipak Misra told the ASG that “we intend to rule, subject to arguments, that two consenting adults even if engaged in ‘ unnatural sex’ will not be liable for prosecution for any offence”.
Replying to the ASG’s submission, the CJI said: “So you are leaving it to our wisdom on whether Section 377 deals with crime and whether it should be treated as a crime or not, and we will deal with it.”
During Tuesday’s hearing, there was enough indication that the court was inclined in favour of de- criminalising Section 377 IPC, and taking note of this the Centre decided not to spell out its stand one way or the other.
Referring to Justice Chandrachud’s observation on Tuesday that the right to choose a partner would also include the right to choose a partner from the same sex, the ASG said: “This may encourage other forms of sexual perversions such as incest, and relationships within the prohibited degrees and between ‘ sapindas’, which are
We intend to rule, subject to arguments, that two consenting adults, even if engaged in ‘ unnatural sex’, will not be liable for prosecution for any offence
— Dipak Misra
Chief Justice
restricted under the Hindu Marriage Act.” The CJI said “we are on consensual sex between two adults”, conveying that the bar on incest and bestiality stood.
Justice Chandrachud said: “There is no fundamental right to sexual orientation but only to the choice of sexual partner. The scope is limited to the mainstream orientation in respect of which history has spoken. Our focus is not only on the sexual act, but the relationship between two consenting adults, and the manifestation of their rights under Articles 14 and 21. We want the relationship to be protected under fundamental rights and to not suffer moral policing.”
It must be noted that even during the hearing by a two- judge bench in February- March 2012, the then UPA government did not take any categorical stand and left it to the court to decide. The two- judge bench ultimately upheld this provision, setting aside the Delhi high court verdict which had decriminalised gay sex.
In its brief affidavit, the Centre said the only question referred for the consideration of the larger bench was that of the constitutional validity of criminalising “consensual acts of adults in private” falling under Section 377 of the IPC, and no other questions were before this bench for consideration.
It said “so far as the constitutional validity of Section 377 to the extent it applies to ‘ consensual acts of adults in private’ is concerned, the Union of India would leave the said question to the wisdom of this court. In the event this court is pleased to declare Section 377 to be unconstitutional, no other issue/ issues and/ or rights are referred for consideration and adjudication, and therefore may not be gone into by this court”.
The affidavit clarified that if the court was pleased to decide to examine any other question other than the constitutional validity of Section 377 IPC, or to construe any other rights in favour of or in respect of LGBTs, the Union of India would like to file a detailed affidavit.
It said consideration of other issues would have far- reaching and wide ramifications under various other laws and would also have consequences, which are neither contemplated in the reference nor required to be answered by this bench. Urging the court not to permit any other issue to be raised beyond the scope of the reference, the Centre said if other issues were permitted to be argued, these would require a detailed counteraffidavit from the Centre.
The CJI told the ASG: “We will strictly confine it to the constitutional validity of Section 377. We will not give any ruling on corollary rights of the LGBT community, relating to their marriage or other ancillary civil rights.”
Counsel Menaka Guruswamy, appearing for a group of IITians, argued that Section 377 curtails the freedom of expression and the right to form an association of a sexual minority. The CJI observed: “Once the court decriminalises Section 377, then the discrimination faced by the LGBT community in employment or choosing any vocation will vanish. After decriminalisation of Section 377, the LGBT community members can freely contest elections without inhibitions. This will help awakening in society and help the LGBT community live life to the fullest.” She said the prohibition of discrimination on the basis of sex under Article 15 of the Constitution includes sexual orientation. Discrim- ination revolves around the sex of a partner and therefore Section 377 violates Article 15 of the Constitution, which must be interpreted in a broad and not in a narrow sense. The court must interpret the Constitution in a manner that would enable citizens to enjoy the rights guaranteed under the Constitution.
The counsel argued that what was manifestly arbitrary was obviously unreasonable, She said Section 377 IPC had a chilling effect, impoverishes discourse, cripples the sexual minority and that it was a terrible colonial legacy. Punishing consensual acts between adults was grossly disproportionate, and its continuation was an instance of non- application of mind, she said, urging the court to emancipate a class of people who had not been given the promises of our Constitution by declaring this provision unconstitutional. The arguments will continue Thursday.