The Supreme Court on Wednesday said the right to sexual orientation is not a fundamental right but indicated that the right to choose a sexual partner is a fundamental right.
A five-judge constitution bench headed by Chief Justice Dipak Misra and also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra was told by various petitioners that section 377 of the IPC violates various fundamental rights under articles 14, 15, 19 and 21 of the Constitution.
Advocate Saurabh Kripal, appearing for a petitioner resumed his arguments on challenge to the constitutional validity of section 377 and said that consensual sexual relationships between same sex is protected under Articles 14, 19 and 21 of the Constitution.
While referring to various verdicts, Kripal said that right to choose one's partner is manifest in Article 21.
Advocate Maneka Guruswamy, appearing for some students from all Indian Institute of Technology, said that the section 377 which criminalises gay sex violates Article 14, 15, 19 and 21 of the Constitution because there is discrimination on the basis of sex.
She said that the provision is a colonial era legacy and violates the fundamental rights of individuals enshrined in the Constitution.
"Section 377 is violative of Article 15 of Constitution because it discriminates on the basis of sex. It is based on Victorial morality and stereotypes an individual. Any kind of stereotyping is impermissible within the Constitution," she said and added that apex court has always intervened whenever legislature has been inactive.
Reading out a report of Indian Psychiatric Society, she said that it says same sex is normal variant and the society has favoured decriminalisation of section 377 as it is affecting lives of LGBT people.
"The section 377 of the IPC should be read down as it making the lives of LGBT community miserable. Denies equal participation to them in professions," she said.
The Chief Justice then asked Guruswamy that is their any rule which prohibits homosexuals from availing equal opportunity.
Guruswamy replied that the provision has a chilling effect in the community and even violates the fundamental right under Article 19(1)(C)(right to form association).
Additional Solicitor General Tushar Mehta, appearing for the Centre, objected to the statement of Guruswamy saying that it was already made clear that nothing else will be debated except from constitutionality of section 377.
Justice Nariman took serious note of objections and said "she is well within her right to argue this aspect as several rights are involved in the issue and if you wish, you can later rebut it".
The Chief Justice said that once the court holds that section 377 is unconstitutional then any disqualification based on 377 will be automatically lifted.
"A declaration to this effect that section 377 is unconstitutional will remove the 'ancillary disqualification' for people joining services or contesting elections. It will also no longer be seen as a moral turpitude or a crime," the CJI said.
Guruswamy continued her arguments and said that section 377 violates right to form association of sexual minority and the LGBT community is afraid of forming any kind of association fearing police action.
She said that there were 350 LGBTQ people who wanted to register themselves as an association but they were denied permission to do so by the authorities.
Mehta on his part said that it would leave the aspect of constitutional validity to the wisdom of the court but said that if the right to choose a sex partner was recognised 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.
To this, Justice Chandrachud said that the right to sexual orientation is not a fundamental right, but the right to choose one's sexual partner is a fundamental right.
Senior advocate Anand Grover, appearing for one of the petitioners, said that this case is not only about decriminalisation of section 377 but about the constitutional values.
He said that if the object is not fair than the validity of the statute cannot be sustained.
He said that the LGBT community is subjected to blackmail and extortion by police and the 2013 verdict of apex court was wrong.
Some other lawyers including advocate Jayna Kothari and senior advocate Shyam Divan have advanced their arguments.
Earlier, the Centre left it to the Supreme Court to test the constitutional validity of section 377 of the IPC which criminalises "consensual acts of adults in private", urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ (lesbian, gay, bisexual, transgender and queer) should not be dealt by it.
Chief Justice Dipak Misra, hearing petitions seeking decriminalisation of 158-year-old colonial law, said if it decided to strike down the law, then it would awaken the LGBTQ community members and help them to live "life to the fullest".
It considered the concerns of the LGBTQ community and said once it decriminalised Section 377 of IPC, all restrictions on them "like forming an association will be lifted, as at present, they cannot form association merely because unnatural sex is a crime."
"We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under section 377," the bench said, adding that "the issue is if two consenting adults are in an relationship, then they shall not be liable to any kind of prosecution."
The bench, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, took note of the Centre's stand of not contesting the case relating to consensual acts of two same sex adults and said, "Now we understand, that you leave it to our wisdom".
Taking note of the Centre's submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.
"We are not considering all these issues. One cannot judge these issues in vacuum. We will not give any ruling on corollary rights of LGBTQ community, relating to their marriage or other ancillary civil rights," it said.
At the outset, Additional Solicitor General Tushar Mehta made clear the government's stand that so far as the constitutional validity of Section 377, to the extent it applied to 'consensual acts of adults in private', was concerned, it would leave the question to the wisdom of the court and urged it not to widen the scope of hearing issues like gay marriages, adoption and inheritance.
Mehta gave an illustration and said if the right to choose a sex partner was recognised 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 on marriages.
"If this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377, or to construe any other right in favour of or in respect of LGBTQ, the Union would like to file its detailed affidavit in reply," the ASG said.
The bench said it would test the validity of the law in relation to the consensual sexual acts of two adults and if it decides to strike down the penal provision then it would remove "ancillary disqualification" of LGBTQ community members which can join 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 relationship was an an example of "social disdain".
It said the penal provision has a "chilling effect" not only on public services but also private employment.
On the issue of restricting the hearing to the validity of Section 377, it said, "we are dealing with the issue whether the relationship between two consenting adults are relatable to the right to life under Article 21 of the Constitution ... We have to deal with the nature of relationship and we are not here to deal with marriages, adoptions and other ancillary issue".
Justice Chandrachud said the court was not here to deal with "kinky stuff", but has to deal with a particular kind of relationship between adults and the question whether it can be brought under the ambit of Article 21.
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.
The hearing on the petitions would resume on Thursday.