SC on verge of decriminalising gay sex

NEW DELHI: The Centre’s decision not to oppose decriminalisation of Section 377, leaving it to the Supreme Court’s “wisdom”, buoyed the court on Wednesday to outline its impending ruling that two consenting adults, even if engaged in “unnatural sex”, will not face criminal prosecution.

The SC pronouncement that it intends to take the view that “two consenting adults even if involved in ‘unnatural sex’ will not be liable for any kind of criminal action or prosecution” brought cheer to the LGBTQ community that has sought relief from the colonial-era law for decades without success.

SC

Uncertainty over the government’s stand evaporated on Wednesday. Additional solicitor general Tushar Mehta handed over the Centre’s affidavit to the CJI Dipak Misra-led five-judge bench, which said: “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 the court.”

The Centre, did, however, put in a strong caveat that would make its decision more politically palatable. It said in the event the SC declared Section 377 unconstitutional as far as consensual acts of adults in private were concerned, the court should not give any ruling on other connected issues and rights that might flow from legalisation of LGBTQ sexual relations. The bench of CJI Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra was in broad agreement with the Centre and said the court would focus only on decriminalising Section 377.

TIMES VIEW

TOI has repeatedly argued that Section 377 should have no place in the statutes of a modern, liberal society. The state has no business dictating the sexual orientation of consenting adults. The Delhi HC earlier and SC now have shown they are willing to decriminalise gay sex. The government needs to be commended for getting out of the way and leaving it to the court. The ideal solution would have been for the legislature to recognize that the law needs to be repealed. Unfortunately, that is unlikely to happen. Under the circumstances, this seems to be the best solution possible.

Mehta outlined pitfalls of going beyond Section 377 and warned that it could lead to legalising incestuous relationships between adults or even permit group sex or bestiality as a person could be seen, armed with the right to privacy judgment, to say that such kind of sexual desires stemmed from his/her particular “orientation”, which was part of the right to privacy and right to life. The ASG’s arguments underlined that an unnuanced interpretation of consenting adults and privacy could prove problematic and even imperil the hard-fought victory for gay rights.

Though the bench in general was in agreement with the Centre over sticking to determining the constitutional validity of Section 377 as far is it impeded consensual sexual relations in private between adults, Justice Chandrachud took a 360 degree view of the consequences and said: “I am very concerned about limiting the relationship to sex alone. A relationship between two adults includes not only sex but a large number of other issues which are intrinsic to right to privacy and in turn to right to life.”

Justice Chandrachud said: “If two gay partners are not engaging in a Section 377-like situation but are taking a walk hand in hand, say on Marine Drive, we do not want any moral policing to stop them from doing that.”

The proceedings maintained pace for the second consecutive day despite the sensitive nature of the issues involved and Wednesday saw advocates Saurav Kirpal, Menaka Guruswamy, Anand Grover, Jayna Kothari concluding their arguments and Shyam Divan’s submissions almost reaching a conclusion. As indication came that hearings could be concluded in two more days, the Centre said it would argue only for 15 minutes on Thursday.

Guruswamy raised issues relating to discrimination faced by the LGBTQ community and wanted its members to be permitted to form associations. When Mehta opposed it saying the issue was not within the ambit of scrutiny of Section 377, the CJI explained: “Suppose we read down Section 377 and rule consensual sexual relations between two adults in private is not an offence, the basis for which the LGBTQ community members were barred from forming association gets lifted. Any other disqualification attached to members of LGBTQ community under Section 377 would also go.”

The Centre made it clear that it would go so far and no further and said if the SC intends to examine any issue other than the limited scrutiny of the constitutional validity of Section 377, it reserves the right to file a detailed affidavit. “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 the SC,” it said.

Requesting the court not to widen the ambit of the scrutiny, the Centre said: “Allowing any other issue to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter-affidavit may not be in the interest of justice and would be violative of the principles of natural justice.”
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