The Supreme Court on Tuesday refused to expand the scope of the challenge to validity of the Indian Penal Code’s Section 377 to include the right to marriage, co-habitation and adoption of people belonging to LGBT groups. The court will continue hearing the case on Wednesday.
The five judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y.Chandrachud and Justice Indu Malhotra made it clear that it will only confine the hearing to the constitutional validity of Section 377, which criminalizes homosexuality.
Telling senior counsel Mukul Rohatgi that “let us for now limit to the vires of Section 377 IPC”, Chief Justice Misra said that the question was whether Section 377 is ultra vires or not.
Ruling out expanding the scope of the hearing, the CJI said that all the issues rooted in the rights of the LGBT community like marriage, co-habitation, adoption and inheritance “can be debated when the issue comes before us. Let there be no advance ruling”.
The court said this as Rohatgi, appearing for the hotelier Kesav Suri, told the bench that their challenge to the vires of Section 377 IPC was one aspect and they were also seeking protection of their rights under Article 21 guaranteeing life and liberty.
However, this was opposed by Additional Solicitor General Tushar Mehta, appearing for the Central government, who said: “Let us confine to challenge to Section 377.”
He said that if the scope of the hearing had broadened, then the government must be given an opportunity to respond to the petition being argued by Rohatgi.
However, this issue saw difference of perceptions within the judges, as Justice Chandrachud said that the declaration by the constitution bench should not be limited to testing the validity of Section 377.
As Mehta insisted that the hearing should be limited to Section 377, Justice Chandrachud observed: “This is a constitution bench.”
However, Justice Nariman, along with the CJI, said they should first decide on the constitutionality of Section 377 and then decide on the individual rights that would follow consequently.
Describing his clients belonging to a sexual minority and seekinge protection of their rights, Rohatgi urged the bench not to restrict the hearing just to the challenge to Section 377, asking how many of them can later approach the court on individual issues.
He said that sexual orientation - which according to Section 377 IPC is against the order of the nature - is in fact is also an order of nature as it was not a matter of choice and cultivated trait but the one that nature has given through genes.
The constitution bench is hearing a batch of petitions by Suri, Sangeet Natak Academy awardee Bharatnatyam dancer Navtej Singh Johar, a group of past and present LGBT IITians and others against its 2013 order, setting aside a Delhi High Court’s July 2, 2009 verdict decriminalising gay sex.
Appearing for Johar, senior counsel Arvind Datar argued that criminalizing gay sex was punishing someone for me something “that is innate, nature and God has given”. “It can never be against the order of the nature as it is nature itself.”
He said that the right to life also means right to choose partners, which he contended was part of the right to privacy, and the right to sexual orientation.
Pointing to the inconsistency of Section 377 with the present day understanding of rights including right to privacy, he said that no law-making body can now enact section 377 as it would totter at the presumption of constitutionality.
As Datar sought to place the mankind at a higher pedestal with the rest of the animal kingdom in the matter of making choices, Justice Malhotra observed that 150 species of animals show homosexual tendencies.
She also referred to British Prime Minister Theresa May expressing regret over UK’s colonial anti-gay law and saying that 37 of the 53 Commonwealth countries were still following the law passed under British rule.