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Delhi loses nerve on gay sex

Supreme Court. Picture by Prem Singh

New Delhi: The Narendra Modi government has left it to the "wisdom" of the Supreme Court the question whether consensual sexual relations between homosexuals should be decriminalised.

"That so far as the constitutional validity of Section 377 (which criminalises the so-called unnatural sex) 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, appearing for the Centre, told a five-judge bench on Wednesday.

The Centre's refusal to take a stand is being seen as an attempt to insulate itself from any adverse fallout that may arise from the judgment.

The BJP fears that legalising gay sex would not go down well with its traditional support base while an open stand favouring the archaic law runs the risk of alienating younger citizens.

In contrast, Congress president Rahul Gandhi had long ago made a formal statement supporting decriminalisation of gay sex. But the UPA government had done little to do so.

Several Hindu, Muslim and Christian groups had pleaded for the retention of Section 377 on religious grounds.

On Wednesday, Mehta placed on record before the bench headed by Chief Justice of India Dipak Misra a counter-affidavit filed by the home ministry through an undersecretary.

The five-judge bench is dealing with a batch of petitions filed by LGBT activists for overturning a 2013 Supreme Court judgment that had upheld the constitutional validity of Section 377.

The Centre stated in the counter-affidavit on Wednesday that if the apex court decided to examine other related issues arising out of Section 377, the government would like to present its views on issues such as inheritance and incestuous relationships.

The Centre is of the view that while the top court is free to decriminalise acts that come under the purview of Section 377, the government has to be heard at length before any order on inheritance, guardianship or incestuous relationships is passed.

"If this Hon'ble 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 the 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 are required to be answered by this Hon'ble bench," the Centre's affidavit said.

Mehta told the court that incestuous relationships, for example marriage between close relatives, are barred under the Hindu Marriage Act and so the government ought to be heard if such issues arise.

However, the court clarified that it was confining the issue to the limited question relating to the validity of Section 377.

"....Considering the issues, if any, if permitted to be raised beyond the scope of the reference, the same would require a detailed counter-affidavit showing legitimate state interest on various other issues. Such an exercise could obviously not be undertaken without wider consultations in the government," the Centre said.

"In the most respectful submission of the Union of India, allowing any other issue (other than the 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... may not be in the interest of justice and would be violative of the principles of natural justice," it added.

Earlier during the hearing advocate Maneka Guruswamy, representing over 32 gay activists who included IITans, bureaucrats and businessman, said Section 377 was a grave violation of Articles 14 (equality), 15 (non-discrimination on grounds of sex), 19 (freedom of expression) and 21 (life and liberty).

Maneka told the court that various international medical and scientific reports had debunked the archaic concept that people from the LGBT community suffered from psychological illness.

She told the court that many LGBT activists were reluctant to come into the public domain in both government and private offices. Justice Chandrachud agreed and remarked that it had a "chilling effect" on the LGBT community, many of whom are now working in private and government organisations.

The arguments will resume on Thursday.

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