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A five-judge constitution bench headed by Chief Justice Dipak Misra, which is hearing a clutch of petitions seeking de-criminalization of the 158-year-old colonial law, told the Centre that it does not want the Article to result in harassment.
“We do not want a situation where two homosexuals enjoying a walk on the Marine Drive (in Mumbai) should be disturbed by the police and charged under Section 377,” observed Justice Chandrachud.
The bench further added that a declaration that the penal provision was invalid would help “awakening in the society and help LGBTQ community to live life to the fullest”.
The observations came when additional solicitor general Tushar Mehta, representing the Centre, submitted the government’s stand that so far as the constitutional validity of Section 377, to the extent it applies to ‘consensual acts of adults in private’, was concerned, it would leave the question to the wisdom of the court. He also urged it not to widen the scope of the hearing to issues like gay marriages, adoption and inheritance.
The apex court further told the Centre that it was not “considering all these issues”.
“We are not considering all these issues. One cannot judge these issues in vacuum … we will not give any ruling on the corollary rights of LGBTQ community, relating to their marriage or other ancillary civil rights,” the bench, which also comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said.
The law officer gave an illustration and said if the right to choose a sex partner was recognized as a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing marriages.
The bench said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decided to strike down the penal provision, then it would remove “ancillary disqualification” of LGBTQ community members which can join the services, contest elections and form associations.
“A declaration that this relationship is constitutional will remove the ‘ancillary disqualification’ for people joining services and contesting elections. It will no longer be seen as moral turpitude,” the bench said, adding that a law criminalising such a relationship was an example of “social disdain”.
It said that the penal provision has a “chilling effect” not only on public services but also private employment.
“We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under section 377,” Justice Chandrachud said, adding that the court has to deal with a particular kind of relationship between adults and the question whether it can be brought under the ambit of Article 21 (Right to life and liberty) of the Constitution.
Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
Earlier today, the law officer had made clear the Centre’s stand and said the government would not contest if the court dealt with the constitutional validity of Section 377, to the extent it applies to ‘consensual acts of adults in private’.
“If this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377 of the Indian Penal Code, or to construe any other right in favour of or in respect of LGBTQ, the Union of India would like to file its detailed affidavit in reply,” the ASG said.
He then referred to the affidavit of the Centre and said many laws dealing with marriages, inheritance, adoption would be affected if the court widened the scope of the hearing.
Consideration of any other issue “would have far-reaching and wide ramifications under various other laws and will also have consequences which are neither contemplated in the reference, nor required to be answered by this Bench,” he said.
The Centre will have to file its response after wider consultations in case the scope of the hearing widens, the ASG said.
The hearing in the matter remained inconclusive and would resume tomorrow.
The apex court had yesterday commenced the crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender.
The top court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.