Gay sex: Centre leaves it to wisdom of SC to decide on constitutionality of Section 377 IPC

In 2013, the apex court restored sexual relationship between persons of the same sex as a criminal offence.

Updated - November 28, 2021 08:44 am IST

Published - July 11, 2018 01:05 pm IST - New Delhi

 LGBT community members and their supporters participate in a annual Queer Azaadi march in Mumbai in February 2018.

LGBT community members and their supporters participate in a annual Queer Azaadi march in Mumbai in February 2018.

The Union government on July 11 told the Supreme Court that it would leave it to the wisdom of its judges to decide the constitutionality of Section 377 IPC, which criminalises sexual activities "against the order of nature", including homosexual activities.

It, however, said the court should specify that the right to choose a partner should not extend to perversions like incest.

Additional Solicitor-General Tushar Mehta submitted before a Constitution Bench led by Chief Justice of India (CJI) Dipak Misra that by freedom of choosing a partner, a person should not be allowed to choose his sister as his partner. Such an act would go against the tenets of Hindu law.

"My choice of partner should not be my sister... prohibited under Hindu law. Allowing the choice of a partner should not extend to incest... sado-masochism...," Mr. Mehta said.


In a sharp retort, Justice D.Y. Chandrachud said the Bench was not here to adjudicate over any "kinky notions" of sexual orientation.

SC studying issue of 'protecting the relationship': CJI

Justice Chandrachud addressed Mr. Mehta to say that the prerogative of this hearing was to understand the nature of a relationship and bringing it under the protection of Article 21 (fundamental right to life) of the Constitution.

The CJI said the court was considering the issue of "protecting the relationship". The court was not confining its ambit to LGBTQ or sexual orientation, it is looking into the aspect of two consenting adults who will not be liable for criminal action for their relationship.

Justice Rohinton Nariman intervened to say that the Bench was delving into the "content" of the fundamental right

Justice Chandrachud said, "Mr. Mehta, we are not even on the sexual act. We are examining whether the relationship between two consenting adults is itself a manifestation of Article 21... We are on the nature of the relationship and not going to talk on marriage, etc."

He further observed, "It should not come to a situation where two homosexuals enjoying a walk on the Marine Drive be distrubed by the police... we want to protect the relationship."

Handing over a four-page affidavit to the Bench, Mr. Mehta said, "We will leave it to the wisdom of the court".

But the affidavit makes it clear that the Centre is staying neutral only on the question of whether Section 377 IPC is constitutional or not.  

'Centre ready to respond with detailed affidavit'

Mr. Mehta made it clear that if the court ventures into aspects like same sex marriage, etc, the Centre would respond with a detailed affidavit showing "legitimate State interest" after "wider consultations in the government". "If this court is pleased to decide to examine any other question other than the constitutional validity of Section 377 of the Indian Penal Code, or to construe any other right in favour of or in respect of LGBTQ, the Union of India would like to file its detailed affidavit in reply as consideration of other issues 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 this Hon’ble Bench," the affidavit stated. Any decision of the court on issues such as same sex marriage without giving the government an opportunity to be heard would "not be in the interest of justice and would be violative of principles of natural justice". Advocate Menaka Guruswamy made an emotive submission about the constant battle faced by the community against stigma and a draconian law. She talked about the decades' long relationships and mutual love and support shared by the petitioners with their partners. "How strongly must you love knowing you are unconvicted felons? My Lords, this is love that must be constitutionally recognised and not just as a sexual act," she submitted. The CJI agreed that a "declaration their relationship is constitutional will even remove the "ancillary disqualification" for people joining services, contesting elections. It will no longer be seen as moral turpitude". Justice Chandrachud said Section 377 had a "chilling effect" on public service employment, which naturally may extend to the private sector. Any law which criminalised such a relationship was an example of social disdain, he noted.

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