New Delhi: The Union government on Wednesday decided to leave it to the “wisdom of the Supreme Court” on declaring IPC Section 377 criminalising consensual gay acts of two adults as unconstitutional or not.
Referring to Justice Chandrachud’s observation on Tuesday that right to choose a partner would also include right to choose partner from the same sex, the ASG said, “this may encourage other forms of sexual perversions such as incest, and relationships within the prohibited degrees and between “sapindas”, which are restricted under the Hindu Marriage Act.
The CJI said, “we are on consensual sex between two adults, conveying that the bar on incest and bestiality stood.” Justice Chandrachud replied, “there is no fundamental right to sexual orientation but only to the choice of sexual partner. The scope is limited to the mainstream orientation in respect of which the history has spoken. Our focus is not only on sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21. We want the relationship to be protected under fundamental rights and to not suffer moral policing.”
In its brief affidavit, the Centre said the only question which is referred for the consideration of larger bench is the question of constitutional validity of criminalising “consensual acts of adults in private” falling under Section 377 of the IPC and no other questions fall for consideration of this Bench.
It said, “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 Court. In the event this Court is pleased to declare Section 377 viz. to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into by this court.”