Even as the Supreme Court constitution bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra continued the hearing of the validity of Section 377 on Wednesday (July 11), the Centre filed an affidavit saying that it will leave the decision of decriminalising Section 377 to “the wisdom of the court”.

That decision of the government was conveyed to the court by Additional Solicitor General Tushar Mehta, who said:  “The Union of India leaves this issue to the wisdom of the Court. The government made it clear that only in case the court was considering the larger issues (LGBTQ) would the government  file a detailed statement.

The ASG made it clear that the Centre does not contest the point that the right to choose partner is a fundamental right.

At that Justice Chandrachud said: “Sexual orientation is not a fundamental right but the choice of your partner is.”

The ASG submitted an example, or a possible paradox, where if a man chooses his sister as a partner. This would violate the Hindu marriage Act but will comply with the right to choose your own partner and sexual orientation.”

The CJI said that two consenting adults involved in this unnatural activity, will not be liable to any criminal proceedings.

Senior advocate Mukul Rohatgi pointed out: “Even when penal provisions are not enforced, they reduce gay men and women to social stigma.” He said that Section 377 goes on to violate the rights of an individual.

Senior advocate Arvind Datar said Section 377 does not punish a person, but punishes a class of people.  He said that the principle of equality presumes that discrimination for a de facto group of people who are different from others is treated differently by the law.

The gearing of the matter will continue tomorrow.

– India Legal Bureau