The Centre today left it to the Supreme Court to test the constitutional validity of section 377 of the IPC which criminalises "consensual acts of adults in private", urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it.
A five-judge constitution bench headed by Chief Justice Dipak Misra, hearing petitions seeking decriminalisation of 158-year-old colonial law, said if it decided to strike down the law, then it would awaken the LGBTQ (lesbian, gay, bisexual, transgender and queer) community members and help them to live "life to the fullest".
It considered the concerns of the LGBTQ community and said once it decriminalised Section 377 of IPC, all restrictions on them "like forming an association will be lifted, as at present, they cannot form association merely because unnatural sex is a crime."
"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," the bench said, adding that "the issue is if two consenting adults are in an relationship, then they shall not be liable to any kind of prosecution."
The bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, took note of the Centre's stand of not contesting the case relating to consensual acts of two same sex adults and said, "Now we understand, that you leave it to our wisdom".
Taking note of the Centre's submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said 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 corollary rights of LGBTQ community, relating to their marriage or other ancillary civil rights," it said.
At the outset, Additional Solicitor General Tushar Mehta made clear the government's stand that so far as the constitutional validity of Section 377, to the extent it applied to 'consensual acts of adults in private', was concerned, it would leave the question to the wisdom of the court and urged it not to widen the scope of hearing issues like gay marriages, adoption and inheritance.
Mehta gave an illustration and said if the right to choose a sex partner was recognised 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 on marriages.
"If this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377, or to construe any other right in favour of or in respect of LGBTQ, the Union would like to file its detailed affidavit in reply," the ASG said.
The bench said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decides to strike down the penal provision then it would remove "ancillary disqualification" of LGBTQ community members which can join 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 relationship was an an example of "social disdain".
It said the penal provision has a "chilling effect" not only on public services but also private employment.
On the issue of restricting the hearing to the validity of Section 377, it said, "we are dealing with the issue whether the relationship between two consenting adults are relatable to the right to life under Article 21 of the Constitution ... We have to deal with the nature of relationship and we are not here to deal with marriages, adoptions and other ancillary issue".
Justice Chandrachud said the court was not here to deal with "kinky stuff", but 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.
Lawyer Maneka Guruswamy, appearing for a petitioner, referred to reports of Indian and American psychiatric bodies and said homosexuality was a normal sexual orientation.
Terming the law as a "terrible colonial legacy", she said it violated Articles 15 (discrimination on sex), 14 (equality), 19 (liberty) and 21 of the Constitution and has a "chilling effect" on the sexual minority.
Senior lawyers Anand Grover, Shyam Divan and lawyers Saurabh Kripal, Guruswamy and Jayna Kothari also advanced the arguments.
Divan submitted that the apex court should declare the 'right to intimacy' as fundamental right.
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.
The hearing on the petitions would resume tomorrow.
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