New Delhi, July 11: The Centre has informed the Supreme Court that it would leave it to the Bench to decide on the constitutionality of Section 377 of the Indian Penal Code. The Bench headed by Chief Justice of India, Dipak Misra said that it intends to rule, subject to arguments, that the two consenting adults even if engaged in unnatural sex will not be liable for prosecution for any offence.
The Bench also said that it will not give any ruling on corollary rights of the LGBTQ community, relating to their marriage or other ancillary civil rights. The Centre represented by Additional Solicitor General Tushar Mehta said that the court should decide only on whether Section 377 should be de-criminalised or not. The court should not rule on another issue as it could have far reaching consequences in future, he also said. Mehta while referring to the Hadiya case on the right to choose a partner said, " freedom to chose a partner should not go to the extent of incest. The partner should not be a sister, it is prohibited in Hindu law, he said. Choosing a partner should not travel into the realm of incest or sad masochism, the ASG said. The Bench however shot back by saying, " we are not here to talk about some kinky notions of sex. We are here to discuss the nature of a particular relationship between adults and bringing it under Article 21 of the Constitution. We are not on the sexual act. We are on whether the relationship between two adults is itself a manifestation of of Article 21 which deals with the fundamental right to life, Justice Chandrachud on the Bench said. He further said, " 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. Mehta then told the Bench that the Centre's affidavit is confined only to the question of whether Section 377 is constitutional or not. If the court goes into other issues such as same sex marriage among others, it would file a detailed second affidavit, he also said. Arguing for the petitioners, Menaka Guruswamy said Section 377 violates Articles 15 (discrimination on sex), 14 (equality), 19 (liberty) and 21 (life and dignity). Section 377 has a chilling effect and impoverishes discourse and cripples sexual minority. It is a terrible colonial legacy, she also said. The court observed that once it de-criminalises Section 377, then the discrimination faced by the LGBT community in employment or choosing any vocation will vanish. The Bench also said that the LGBT community can also then freely contest elections without any inhibitions. This would awaken the society and help the community live life to the fullest, the court also said. The court had on Wednesday commenced the crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender. The Supreme Court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi High Court judgement that had held as unconstitutional section 377 of the IPC, which makes such actions between two consenting adults of same sex as a penal offence.