In big shift forward, govt not to contest challenge to Section 377, leaves it to Supreme Court

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Additional Solicitor General Tushar Mehta submitted the affidavit before a five-judge Constitution Bench comprising Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. After going through the relevant sections in the affidavit, CJI Misra told Mehta: “It means you are not contesting.”

The ASG, however, said the Centre was concerned about issues like bestiality and incestuous relations. He requested the bench to ensure that someone does not use the court’s decision, if it were to hold Section 377 unconstitutional, to justify such acts saying it is a part of their sexual orientation. “Please do not say anything that may be construed for any object that your lordships did not intend,” Mehta told the bench.

Read | What is Section 377 of IPC?

He urged the court to restrict itself to deciding the constitutionality of Section 377 and not go into other issues. This was underlined in the Centre’s affidavit: “If this Hon’ble 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 as consideration of other issues would have far-reaching and wide ramifications under various other laws and also will have consequences which are neither contemplated in the reference nor required to be answered by this Hon’ble Bench.”

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A day earlier, senior advocate Mukul Rohatgi, appearing for one of the petitioners, had urged the court that besides dealing with Section 377, it should also make a declaration under the Constitution for protection of the rights of “sexual minorities” including on matters of marriage, inheritance, adoption and live-in.

This was opposed by ASG Mehta who said the court cannot go into the larger issue as it is beyond the scope of reference made to the Constitution Bench. He said the court cannot proceed with such a hearing without knowing the Centre’s stand. CJI Misra then made it clear that the court would only deal with the constitutionality of Section 377. He said the other matters would be taken up when individual cases come up before courts.

On Wednesday, the CJI reiterated this, saying its ruling would be limited to answering whether two consenting adults were liable for prosecution if they engaged in unnatural sex. Justice Chandrachud told Mehta that the bench was not deciding any “kinky” stuff. “We are not on the sexual act. We are on whether the relationship between two adults is itself a manifestation of Article 21 (protection of life and personal liberty),” he said.

“We do not want a situation where two homosexuals enjoying a walk on the Marine Drive (in Mumbai) should be disturbed by police and charged under Section 377,” he said. CJI Misra clarified that “suppose Section 377 is read down, then they (LGBTQ members) will be at par with other citizens. If the criminality is removed, they can walk together and eat dinner together.” Advocate Menaka Guruswamy, appearing for some IIT graduates who have challenged the provision, said it had a “chilling effect” on the LGBTQ community and barred them from even forming a registered association, violating rights guaranteed by the Constitution.

The CJI sought to know if there was any rule forbidding employment of homosexuals in any job. “No,” replied Guruswamy, adding which was why she said it had a “chilling effect”. The CJI replied: “If there are any service conditions that forbid employment of transgenders or homosexuals, that will also go by virtue of our holding Section 377 unconstitutional.” Guruswamy cited the case of some of the petitioners to highlight the stigma that the community still suffers. Sunil Mehra, one of the petitioners, had cleared the IAS but did not join because of this. Amar Nath was in a relationship for over 25 years, but his partner died, she pointed out.

“I ask myself, how strongly must you love knowing you are unconvicted felons under Section 377 IPC… This is not a sexual act. This is love that must be constitutionally recognised… It’s just not about reading down the law but about the collective conscience of this country. This court is called upon to change social morality to constitutional morality,” she said. At this, the CJI said: “A declaration that this relationship is constitutional will remove the ‘ancillary disqualification’ for people joining services, contesting elections. It will no longer be seen as moral turpitude.”

Justice Chandrachud said that a law criminalising such relationships is an example of social disdain and that Section 377 has a chilling effect not only on public services but also private employment. Senior advocate Anand Grover, also appearing for some of the petitioners, said people from the LGBTQ community were earlier reluctant to approach the court. Now more and more people were coming forward since they felt the court was sympathetic to their cause, he said.

But Justice Chandrachud wasn’t convinced. He said he had doubts if more petitions in the court meant any reduction in the stigma since most coming to the court were educated, urban-oriented people. Advocate Jayna Kothari, appearing for three transgenders, drew the attention of the bench to provisions in the laws of Andhra Pradesh and Telangana which state that eunuchs were suspected of unnatural offences.