New Delhi: The central government on Wednesday put the onus of deciding the fate of Section 377 of the Indian Penal Code on the Supreme Court and informed the apex court that it would not contest the batch of petitions seeking to decriminalize homosexuality. “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 Hon’ble Court," read a three-page affidavit filed on behalf of the centre.
The government, however, sought to file its reply to “any other question other than the constitutional validity of Section 377 of the Indian Penal Code", including determination of “right in favour of or in respect of lesbian, gay, bisexual, transgender and queer (LGBTQ)", as such a determination would have far-reaching and wide ramifications under various other laws.
Additional solicitor general of India, Tushar Mehta, also cautioned the court against accepting the argument of “natural orientation" advanced by petitioners on a previous hearing to decriminalize homosexuality, saying that it might lead to a possible challenge to prohibition against incestuous and sapinda relations (cousin marriages in Hinduism) under personal laws.
Mehta further requested the court to restrain itself from adjudicating on the possible impact of decriminalisation of homosexuality on marriage and inheritance.
The Centre’s statement came as a five-judge bench comprising Chief Justice of India Dipak Misra, and justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra was hearing a batch petitions challenging the constitutional validity of Section 377 in the light of the right to privacy judgement delivered by a nine-judge bench.
The Supreme Court re-affirmed the scope of the present litigation was only limited to the constitutional validity of Section 377 with regard to recognizing homosexuality as a crime and stated that it would address civil rights and other issues when they come before the court.
Maneka Guruswamy, who appeared for a group of alumni and students from Indian Institutes of Technology across the country, challenged Section 377 to the extent that it criminalises homosexuality, saying that this is in violation of Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life) of the Constitution of India. This does not concern incest or other abominable conduct, she said.
Guruswamy quoted instances of discrimination faced by members of the LGBT community and said the petitioners sought emancipation of a “class of people left out of the promises of our Constitution". She referred to the Indian Psychiatric Society’s stand on homosexuality not being a mental disorder.
Guruswamy also pointed to the apex court’s verdict in the khap panchayat case, which had ruled that “choice of partner" is a manifestation of the fundamental rights guaranteed under the Constitution.
The Delhi high court had in 2009 ruled that Section 377 of IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal", was unconstitutional. This was overturned by the apex court in 2013. In February, the apex court had restrained khap panchayats from interfering in inter-caste and inter-faith marriages and advised them against behaving like conscience keepers of society.
In January 2018, a Supreme Court bench headed by Chief Justice Misra agreed to consider the implication of the privacy judgement and take another look at the constitutional validity of Section 377, in response to a plea by representatives of the LGBT community, including Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.
The hearing will continue on Thursday.