Government leaves decriminalizing gay sex to SC's wisdom
New Delhi, July 11: The Central government 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 apex court 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.
A brief affidavit it filed 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."
However, it urged the five-judge constitution bench of Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra that they should confine the hearing 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.
"What ever may not be in question may not be decided," Additional Solicitor General Tushar Mehta told the court expressing the apprehension of the Centre.
He told the court that if it intended to touch on other issues like same sex marriage, then the Centre will file another detailed affidavit.
Airing the government's concerns, Mehta referred to Justice Chandrachud's observation made during the course of the hearing on Tuesday that in Hadiya judgement, that "we have already decided that the right to choose partner is a fundamental right".
Clarifying his observation, Justice Chandrachud said they were not going to decide "kinky issues".
"We are (debating) on whether the relationship between two adults is itself a manifestation of Article 21 of the Constitution," he said.
"We don't want a situation when two gays enjoying a walk on Marine Drive should be disturbed by police and charged under Section 377 IPC," he said.
Chief Justice Misra said: "We will decide whether consensual sex between two consenting adults is a crime or not."
Dispelling the apprehensions of the Centre, he said: "We can't judge an issue in vacuum", thereby telling Mehta that the issue of other rights of LGBT community was not before the bench.
The court was hearing of a batch of petitions by hotelier Keshav Suri, Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, a group of past and present IITians and 12 bureaucrats who are LGBT, NGO Voices Against 377, and others assailing the constitutional validity of Section 377 criminalising homosexuality.
In 2013, the top court had set-aside a Delhi High Court's July 2, 2009 verdict decriminalising gay sex.
Appearing for the petitioners challenging the constitutional validity of the Victorian-era law, senior counsel Anand Grover, Shyam Divan, advocate Menaka Guruswamy, Saurabh Kirpal and Jayna Kothari assailed the penal provision on different grounds including its being violative of the Constitution's Article 14, Article 15, Article 19 and Article 21.
Telling the court that in the past, people from the LGBT community were hesitant to approach the court, Grover said that today many of them are coming because they feel court is "empathetic and sympathetic to their plight."
He said that when in 1947 when India became independent, many including LGBT community did not feel that way, and are now seeking full independence from the yoke of British law.
Seeking a declaration that the fundamental right to life under Article 21 also covers "right to intimacy", Divan told the court in a medical emergency, LGBT people find it difficult to accompany the loved ones to the hospital and sign the document necessary for certain surgical procedures.
The hearing witnessed Justice Nariman brushing aside objection by Mehta to Guruswamy's pitching for the right of the LGBT community to form association under Article 19(1)(c).
As Mehta told the court that hearing was limited to the challenge to the Section 377 that criminalises the consensual sex between two consenting adults and the issue of formation of association by invoking Article 19(1)(c) could not be raked up, an unimpressed Justice Nariman told him that he could respond to the arguments in the course of his submissions.
Justice Chandrachud observed that Section 377 had a chilling effect not only on public services but also in private employment as Guruswamy told the court about a person who after clearing the IAS did not join it out of the fear of stigma.
Chief Justice Misra said that the "ancillary disqualification" - the consequences flowing for such relationship which is seen as a moral turpitude - including joining services, and contesting elections would go once court decides on the validity of Section 377.
Kothari, who argued for transgender rights, told the court that the Section 377 is an edifice for denying them their rights.
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Two FIRs lodged against Mithun Chakraborty for 'provocative' speech
Kolkata, Nov 6: Two FIRs have been lodged against actor-turned-politician Mithun Chakraborty for allegedly making provocative statements during a BJP event in Salt Lake area near Kolkata last month, police said on Wednesday.
The complaints pertain to Chakraborty's speech on October 27 at the Eastern Zonal Cultural Centre (EZCC) in Salt Lake, during a BJP programme attended by Union Home Minister Amit Shah, who was in Kolkata to launch the party's West Bengal membership drive.
The first FIR was filed at the Bidhannagar South police station based on a complaint by an individual, while the second was lodged at Bowbazar police station.
"We have started an investigation into the case," a senior officer of Bidhannagar police said.
Shah was also present at the programme, which was organised to kick off the West Bengal leg of the BJP's membership drive. Shah had also felicitated Chakraborty for being honoured with the Dadasaheb Phalke Award this year.
Although Chakraborty was unavailable for comment, BJP state president and Union Minister Sukanta Majumdar described the FIRs a result of "vendetta politics.".
Majumdar alleged that the TMC government "has once again used the police to unfairly target well-known actor and senior BJP leader Mithun Chakraborty".
He accused the chief minister of employing such tactics "to serve political interests" and claimed that the state government's actions were part of an ongoing attempt to discredit political opponents.
"There is nothing provocative in his speech. These are nothing but attempts to intimidate him by using police as a political tool," he said.
TMC leader Kunal Ghosh dubbed the BJP's allegations as baseless.
"The allegations of political vendetta are baseless. He shouldn't have made such provocative remarks. The law will take its own course," he said.
Chakraborty, who received India's highest film honour, the Dadasaheb Phalke Award, earlier this year, had asserted on October 27 that the 'masnad' (throne) of West Bengal would belong to the BJP after the 2026 assembly elections, promising to do whatever it takes to achieve the goal.
While speaking at the programme, Chakraborty, a BJP leader, said, "In 2026, the 'masnad' will be ours, and we will do everything to achieve the goal."
In an apparent reference to TMC MLA Humayun Kabir's communal remarks aimed at BJP workers during the Lok Sabha elections, Chakraborty had allegedly made provocative remarks.
Chakraborty cautioned that no one should attempt to intimidate saffron party voters into abstaining from voting in the next assembly elections.
He called upon the booth-level workers of his party to resist any such attempts.
