Section 377: Modi govt takes no stand in Supreme Court

While the saffron brigade is known to be opposed to gay-sex, the Narendra Modi led Union government on Wednesday refused to spell out its stand before the Supreme Court which is hearing multiple petitions seeking decriminalisation of homosexuality in the country.

With a five-judge constitution bench headed by Chief Justice Dipak Misra resuming hearing of the petitions, the Centre in an affidavit said it was leaving it to the “wisdom” of the Supreme Court to decide if Section 377 of the Indian Penal Code that criminalizes homosexuality, was constitutionally valid.

Centre takes no stand

"So far as the constitutional validity 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 this Hon’ble Court,” additional Solicitor General Tushar Mehta, representing the Centre, told the court.

The Centre, however, clarified that in case the court delves into issues other than those specified, it will file a detailed affidavit with respect to those issues.

“In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice,” the Centre said in the affidavit.

Expressing the Centre’s apprehension, Mehta also informed the court that it should confine to deciding the challenge to the law without any scope that may give rise to LGBT community claiming civil rights including right to property, inheritance marriage, adoption and other rights. 

Homosexuality vs Hindutva

The Centre’s ‘no stand’ posture came a day after BJP MP Subramanian Swamy said homosexuality was against Hindutva.

 “It is not a normal thing. We cannot celebrate it. It's against Hindutva. We should invest in medical research to see if it can be cured. Government should consider having a 7 or 9 judge bench,” Swamy was quoted as saying by ANI.

Section 377 can destroy LGBTs  

Resuming the arguments counsel for one of the petitioners said that section 377 has the potential to destroy lives of LGBT community.

"Section 377 is arbitrary and unconstitutional. It violates Articles 15, 19, 21 of the Constitution. It discriminates on the basis of gender of the partners,” said Menaka Guruswamy representing IIT students and alumni.

She further contended that the law denies the LGBT community full participation in professional life guaranteed by Article 15 and violates the right to form association of a sexual minority.

“LGBT community is afraid of forming association due to fear of police persecution,” she said adding that the section has a 'chilling effect' on freedom of speech and expression, and cannot be classified as a reasonable restriction.

To buttress her arguments she also read out a statement by the Indian Psychiatric Society (IPS) in which it asserted that homosexuality was not a psychiatric disorder.

“The IPS recognises same sex sexuality as a normal variant of human sexuality like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may in fact lead to low self-esteem and stigmatisation of the person,” the Society said in the statement.

On the first day of the hearing (Tuesday), the bench also comprising Justices AM Khanwilkar, DY Chandrachud, RF Nariman and Indu Malhotra, heard at length the petitioners’ arguments against Section 377. 

Filed by a host of people including LGBT members, the petitions seek scrapping of section 377 contending that it violates their rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed by the Constitution.

The petitions are against the apex court verdict in the Suresh Kumar Koushal vs Naz Foundation case in which it upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.