The Supreme Court will today resume hearing on pleas challenging the validity of Section 377 of the Indian Penal Code which criminalises homosexuality. On Tuesday, the apex court bench headed by CJI Dipak Misra ruled out expanding the scope of the challenge to the validity of Section 377 to include marriage, adoption etc relating to the LGBT groups.
The five judges Constitution bench, also comprising Justice Rohinton Fali Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra, said that it “will not wade into the issue which has not so far arisen”.
“All the issues rooted in the rights of the LGBT community like marriages, cohabitation, adoption and inheritance can be debated when the issue comes before us. Let there be no advance hearing,” the CJI observed.
The court made it clear that it will only deal with the question of the validity of Section 377 which criminalises consensual sex between two adults of the same gender. It said that it will only examine the correctness of the Supreme Court’s 2013 order that had overturned the Delhi High’s order.
The Delhi HC had in a landmark judgment on July 2, 2009, decriminalised homosexuality. But in 2013, the apex court overturned the order. After this, a batch of petitions was filed in the Supreme Court by hotelier Keshav Suri, Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, a group of past and present IITians who are LGBT and others.
On Monday, the court had refused the Centre’s plea seeking to defer the hearing saying ‘the matter had been pending for some time and the Centre should have filed its response’. The court had asked the government to file its response during the course of the hearing. “You file whatever you want during the hearing.”
On Tuesday, the CJI asked senior counsel Mukul Rohtagi, who was appearing for Suri, to let the bench now limit to the vires of Section 377. He said that the question was whether Section 377 is ultra vires or not. The court told Rohtagi that their challenge to the vires of Section 377 was one aspect and they were also seeking protection for their rights under Article 21 which promises protection of life and personal liberty.
Additional Solicitor General Tushar Mehta, who was arguing on behalf of the Centre, opposed this urging the court to confine to challenge to Section 377 of IPC. He said that if the scope is broaden, the government should be given time to file its response on petition argued by Rohtagi.
Meanwhile, BJP MP Rajya Sabha member Subramanian Swamy has termed gay sex as “unnatural” and said it was a “genetic flaw” in the person. he said that allowing it will lead to seeting up of gay bars which some American investors wanted to do in India.
“Sex with a person of the same sex is unnatural. In Hindu tradition, we have been sympathetic to there plight. But we have never allowed them to celebrate it and to say that it is a matter of choice,” he told PTI.