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Govt lobs Sec 377 ball in apex court
SC intends not only to decriminalise gay sex but also to stop moral policing
The Centre has left it to the wisdom of the Supreme Court to determine whether sexual acts between two consenting same gender adults should be decriminalised under the Indian Penal Code (IPC) Section 377. Following this, the court made it unequivocally clear that it intends to remove not just the criminal tag from unnatural sex between two consenting adults but also would protect such relationships from any kind of moral policing.
In the matter heard by a Constitution Bench of five Supreme Court judges, the Centre filed a short affidavit on Wednesday stating that the Government did not have any objection to the court deciding on “consensual sexual acts of adults in private”. At the same time, the Centre requested the court not to go into any other question construing any other right in favour or in respect of the lesbian, gay, bisexual, transgender, queer (LGBTQ) community.
Appearing for the Centre, Additional Solicitor General (ASG) Tushar Mehta informed the Constitution Bench that the Centre would like to file a detailed affidavit if other issues relating to rights of LGBTQ are decided. The affidavit said, “Consideration of other issues (apart from consensual acts of adults in private) would have far reaching and wide ramifications under various other laws and also will have consequences which are neither contemplated in the reference nor required to be answered by the Constitution Bench.”
Taking cue from Mehta’s submission, Chief Justice Dipak Misra told the ASG that his submission made it clear that the Government does not intend to contest the petitions filed by LGBTQ community who include persons of eminence from various walks of life.
As the hearing progressed with submissions made by advocate Menaka Guruswamy and later in the day by senior advocate Anand Grover and advocate Jayna Kothari, the Bench, also comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said, “Two consenting adults even if they are involved in unnatural sex will not be liable for any criminal action under Section 377.”
Stretching it further, CJI said, “Once we hold that such acts are not criminal, the sequitur will mean that any disqualification on account of Section 377 will automatically get lifted.” Advocate Guruswamy, who represented alumni of several IITs who are now senior bureaucrats, scientists, and professionals, pointed out that the LGBTQ have lived in constant fear and now look up to the court to get full recognition and expression of their sexual orientation which remains a relationship of love.
Justice Chandrachud observed that it is not necessary to protect just sexual acts between two consenting adults. He explained, “If two homosexuals are not engaging in a Section 377 like situation but walking down, lets say the Marine Drive holding hands together, we do not want any moral policing that prevents them from doing so. Such a relationship involved much more than performance of a sexual act.” The hearing will continue on Thursday.
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