Supreme Court refuses to expand scope of challenge to Section 377

A Constitution bench of the Supreme Court said on Tuesday that it will only decide on the validity of Section 377 of the Indian Penal Code, which criminalises same-sex acts, even as confusion prevailed over the government’s stance on the issue.

The five-judge bench led by Chief Justice of India Dipak Misra, hearing a batch of petitions challenging the British-era provision, said it will not decide on questions such as inheritance and the civil rights of people in same-sex relationships.

“The question here is whether section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to (same sex) live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now,” Misra said.

Government officials from the law and home ministries declined to comment on the matter while members of the ruling Bharatiya Janata Party (BJP) remained tight-lipped about whether the Centre will back the provision that is used against members of India’s Lesbian, Gay, Bisexual and Transgender (LGBT) community.

Late in the evening, attorney general KK Venugopal told news agency ANI that he had been told the government had a “different stand”. “I had appeared for the curative. I’m told the government’s stand is different therefore I’m not appearing in that case at all. I can’t appear because the government of India has a different stand.” However, he later said that he did not have clarity on what the government’s stand was.

The section was first challenged by activists before the Delhi high court, which read down the provision in 2009. During the high court proceedings, the Union home and health ministry had taken different positions, the former arguing for retention of the law, and the latter saying it should be read down.

When the judgment was challenged by religious organisations in the Supreme Court, the then United Progressive Alliance (UPA) government didn’t oppose the high court judgment, and even filed a review petition after the apex court reinstated Section 377.

Earlier in the day in court, the bench appeared to differ over the scope of the hearing, where six petitions are being examined. Justice DY Chandrachud suggested the petitioners seek a larger declaration under the Constitution for protection of their rights that would include marriage, inheritance, adoption and live-in relationships.

Additional solicitor general Tushar Mehta objected to this, saying it was beyond the scope of reference of the Constitution bench, and that the court could not proceed with such a hearing without knowing the Centre’s stand.

“I gave an application wanting time to file a written response,” Mehta said. “We (Centre) are in the process of a candid discussion. It would be unfair for the court to take up the prayer that is made for the first time,” the ASG said. He said the petitioners must confine to the constitutionality of section 377 and that the Centre would place its stand on record during the course of the hearing.

Justice Chandrachud told Mehta that the matter was before a larger bench and restriction of issues was not appropriate. But the law officer remained adamant, prompting the CJI to intervene.

“Today we are focussing on whether 377 is ultra vires or not. You have an orientation and you exercise it if we eventually upheld your plea. Suppose your partner tries to sue you for some kind of right... such issues will be debated when a lis (issue) comes to court. We cannot have an advanced ruling,” the CJI told Mukul Rohatgi, who was appearing for Navtej Johar, one of the petitioners.

“As society changes, values change,” Rohatgi told the judges. “What was moral 160 years ago might not be moral today.”

Rohatgi also disagreed with Mehta’s view. “I can argue for my rights. My life as a sexual minority has to be protected. Do not restrict this hearing to just the validity of section 377. Our lives are passing by. How many of us can come on individual issues later? I was asking a principle to be laid down to protect my rights under Article 21 (right to life and liberty).”

Justice Rohinton Nariman, another member of the bench, asked Rohatgi to proceed, saying, “Let’s first decide constitutionality of 377 then decide on individual rights that follow.”

Making a remark in favour of the LGBT community’s right to choose partners, Chandrachud said, “Supreme court has laid down that the choice of partner is part of Article 21 (Hadiya judgment) and the partner would include same-sex partner too.”

Ashok Row Kavi, one of the petitioners, said the government might choose to back Section 377 in the name of culture and tradition but say it respects the judgment if it favours the petitioners. “My sense is that they are not only having the cake, but eating it too,” he added.