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SC on verge of decriminalising gay sex, govt leaves it to judges #LGBTQ

‘Consenting Adults Won’t Be Prosecuted’

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 apex court’s 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 cheers to the LGBTQ community that has sought relief from the colonial-era law for decades without success.

Uncertainty over the Centre’s stand, given its stout opposition to decriminalisation of Section 377 before the SC under UPA in 2013 after a petition challenged the Delhi HC’s favourable 2009 judgment, evaporated on Wednesday much to the jubilation of the LGBTQ community. Additional solicitor general Tushar Mehta handed over the Centre’s affidavit to 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 top court would focus only on decriminalising Section 377.

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.

‘Allow LGBTQ members to form associations’

Though the SC 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 a large number of other issues which are intrinsic to right to privacy and, in turn, to right to life.” He added, “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. Amid indication that the hearings could be concluded in two more days, the Centre said it would argue only for 15 minuteson Thursday.

Guruswamy raised issues relating to discrimination faced by the LGBTQ community members and wanted that they should also be permitted to form associations. When Mehta opposed this saying the issue was not within the ambit of scrutiny of Section 377, the CJI explained, “Suppose we read down Section 377 and rule that 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 because of ‘unnatural sex’ being an offence 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.

Requesting the SC not to widen the ambit of the scrutiny, the Centre said, “Allowing any other issue (other than the constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counteraffidavit may not be in the interest of justice and would be violative of the principles of natural justice.”

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Comment (1)

  1. K SHESHU BABU

    The LGBTQ community have been waging relentless struggles for their rights. They might get positive response

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