Centre leaves it to Supreme Court to decide if law against gay sex is valid

The Centre on Wednesday left it to the “wisdom” of the Supreme Court to decide on the constitutional validity of Section 377 of the Indian Penal Code, which criminalises same-sex acts, but asked the top court to steer clear of civil rights issues related to this, effectively clearing the way for the court to strike down the colonial era law, although some activists criticised it for what they saw as a hands-off approach.

The Union home ministry filed an affidavit in front of a Constitution bench on the second day of the hearing, and said that as long as the question was about “consensual acts of adults in private” , the government would leave it to the wisdom of “this Hon’ble Court.”

“So it means you are not contesting it?” the five-judge bench headed by Chief Justice of India Dipak Misra asked additional solicitor general (ASG) Tushar Mehta.

“It is up to the wisdom of the court,” Mehta replied, but asked the court to not go beyond the scope of constitutional validity as that might have wider consequences. “If the court touches on other issues, other ancillary civil rights, the Centre must be given time to put across its view.”

“The ruling would be only limited to whether two consenting adults even if engaged in ‘unnatural sex’ will be liable for prosecution or not for any offence,” Misra responded.

“What we intend, subject to arguments, that two consenting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution for any offence.”

Mehta said if the right to choose a sexual partner is declared a fundamental right, then somebody might say he or she wanted to marry a sibling, which would be contrary to the laws governing marriages. “Someone accused of bestiality will cite his or her sexual orientation in defence,” Mehta submitted.

“We are not considering all these issues. One cannot judge these issues in vacuum,” the bench said, in response to the ASG. But Justice DY Chandrachud said the judgment would have a bearing on the fundamental right of homosexual people to choose their partner. “Right to choose a partner is inherent under Article 21. Sexual act is just a part of a relationship. We do not want that tomorrow, two adults walking on the beach of Mumbai are stopped by police,” he said.

The bench indicated that it was in favour of scrapping the colonial provision used against members of India’s Lesbian, Gay, Bisexual and Transgender (LGBT) community. Misra said, “Section 377 is an infrastructure to deny rights to the LGBT community. Consensual relationship can’t materialise without the exercise of free choice.”

He went on to say, “Suppose Section 377 is read down, then they (LGBT members) will be at par with other citizens. If the criminality is removed, LGBT members can walk together and eat dinner together.”

His remarks came when advocate Menaka Guruswamy, arguing for 20 petitioners from the IITs, argued that Section 377 barred LGBT people from even forming a registered associations, violating the community’s freedom of speech, a right under the Constitution.

Guruswamy argued the law deprived the LGBT community of tangible benefits such as jobs, protected under the constitution. When the CJI asked if any rule barred homosexual people from jobs, Guruswamy cited the example of one of the petitioners, Sunil Mehra, who cleared the Indian Administrative Service exam but did not join because of the fear of the stigma attached to his sexual orientation.

“The effect of court’s judgement in NALSA (a judgement that recognised transgender people as “third gender”) was that there was a rush of transgenders for job. This section (377) stops the LGBT community from pursuing their constitutional rights and professional life,” Gururswamy argued.

“The criminalisation (of Section 377) is based on laws before the dawn of the Constitution,” Guruswamy added.

“A declaration this relationship is constitutional will remove the “ancilliary disqualification” for people joining services, contesting elections. It will no longer be seen as moral turpitude,’’ the CJI remarked.

Section 377 was read down by the Delhi high court in 2009 when the Congress-led UPA was in power. 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 scrapped. When the judgment was challenged by religious organisations in the Supreme Court, the government didn’t oppose the high court judgment, and even filed a review petition after the apex court reinstated Section 377 in 2013.

The current hearing began on Tuesday on six petitions that argued the 1861 law affected the petitioners personally. The Joint Action Council Kannur and the Utkal Christian Council, which had backed Section 377 in the SC earlier, are expected to start their arguments in favour of the law on Thursday. The All India Muslim Personal Law Board, which had also supported Section 377 the last time, said it hadn’t reached a decision on filing an intervention. “Like all other religious organisations, we too, in principle, are against any move to scrap Section 377. But the issue is not on the agenda of the Board’s (July 15) meeting,” said Zafaryab Jilani, secretary of the AIMPLB.

Congress spokesperson Priyanka Chaturvedi attacked the government for not taking a stand on the issue. “It is extremely unfortunate that after evolving as a society, we continue to hold on to some draconian laws which have no place in present times. The government’s stand shows that it continues to believe in such draconian laws. It has let down a huge section of the people who voted for Prime Minister Narendra Modi and the BJP hoping that they will be able to bring about change,” she said.

Akkai Padmashali, one of the petitioners, said the government’s stand was unclear and immature. “On the one hand, they are introducing a transgender rights bill in Parliament, which we hope will talk about marriage, inheritance, employment, reservations, education, and adoption. On the other, they don’t want to bring up matter of these civil rights while reading down Section 377. Isn’t it the government’s job to protect everyone’s rights?”

(with inputs from Tariq Khan in Lucknow)