Sec 377 example of ‘social disdain’, declaring it invalid will help: SC

NEW DELHI, JUL 11 (AGENCIES) | Publish Date: 7/11/2018 11:07:32 PM IST
Supreme Court on Wednesday said that it doesn’t want two homosexuals enjoying a walk on Mumbai’s Marine Drive to be disturbed by the police on the pretext of Section 377 and added that declaring it invalid will help “LGBT community live life to the fullest”.
A five-judge constitution bench headed by Chief Justice Dipak Misra, which is hearing a clutch of petitions seeking de-criminalization of the 158-year-old colonial law, told the Centre that it does not want the Article to result in harassment.
The bench further added that a declaration that the penal provision was invalid would help “awakening in the society and help LGBTQ community to live life to the fullest”.
The observations came when additional solicitor general Tushar Mehta, representing the Centre, submitted the government’s stand that so far as the constitutional validity of Section 377, to the extent it applies to ‘consensual acts of adults in private’, was concerned, it would leave the question to the wisdom of the court. He also urged it not to widen the scope of the hearing to issues like gay marriages, adoption and inheritance.
SC further told the Centre that it was not “considering all these issues”. “One cannot judge these issues in vacuum ... we will not give any ruling on the corollary rights of LGBTQ community, relating to their marriage or other ancillary civil rights,” the bench, which also comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said.
The law officer gave an illustration and said if the right to choose a sex partner was recognized as a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing marriages.
The bench said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decided to strike down the penal provision, then it would remove “ancillary disqualification” of LGBTQ community members which can join the services, contest elections and form associations.
“A declaration that this relationship is constitutional will remove the ‘ancillary disqualification’ for people joining services and contesting elections. It will no longer be seen as moral turpitude,” the bench said, adding that a law criminalising such a relationship was an example of “social disdain”. It said that the penal provision has a “chilling effect” not only on public services but also private employment.
Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
Consideration of any other issue “would have far-reaching and wide ramifications under various other laws and will also have consequences which are neither contemplated in the reference, nor required to be answered by this Bench,” he said. The Centre will have to file its response after wider consultations in case the scope of the hearing widens, the ASG said. The hearing in the matter remained inconclusive and would resume on Thursday.
Govt leaves it to SC’s wisdom to decriminalize gay sex
Centre on Wednesday said it was leaving it to the wisdom of the Supreme Court to decide if a law that criminalizes consensual gay sex was constitutionally valid. On the second day of the hearing on the plea challenging the constitutional validity of Indian Penal Code’s Section 377 that criminalises homosexuality, the Centre did not spell out its stand one way or the other
However, it urged the five-judge constitution bench that they 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.

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