Ban on gay sex may be on way out

Chief Justice of India Dipak Misra on Wednesday indicated that the ban on gay sex may be on the way out. ‘‘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, Chief Justice Misra said.

The observation came even as the centre said it was leaving it to the wisdom of the Supreme Court to decide if a law that criminalizes consensual gay sex was constitutionally valid.

On the second day of the apex court hearing on the plea challenging the constitutional validity of IPC Section 377 that criminalises homosexuality, the Centre did not spell out its stand one way or the other. However, it urged the five-judge constitution bench that it should confine the hearing to deciding the challenge to the law without any scope that may give rise to LGBT community claiming civil rights, including right to property, inheritance marriage, adoption and other rights.

"Whatever may not be in question may not be decided," Additional Solicitor General Tushar Mehta told the court expressing the apprehension of the Centre.

He told the court that if it intended to touch on other issues like same sex marriage, then the Centre will file another detailed affidavit.

Airing the government's concerns, Mehta referred to

Justice Chandrachud's observation made during the course of the hearing on Tuesday that in Hadiya judgement "we have already decided that the right to choose partner is a fundamental right".

Clarifying his observation, Justice Chandrachud said they were not going to decide "kinky issues"."We are (debating) on whether the relationship between two adults is itself a manifestation of Article 21 of the Constitution," he said.

"We don't want a situation when two gays enjoying a walk on Marine Drive should be disturbed by police and charged under Section 377 IPC," he said.Chief Justice Dipak Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not."

Dispelling the apprehensions of the Centre, he said: "We can't judge an issue in vacuum", thereby telling Mehta that the issue of other rights of LGBT community was not before the bench.