SC refuses to expand scope of challenge to IPC's Section 377
New Delhi, July 10: The Supreme Court on Tuesday ruled out expanding the scope of the challenge to validity of the Indian Penal Code's Section 377, which criminalizes homosexuality, to include the right to marriage, co-habitation and adoption of people belonging to LGBT groups.
Saying that it will only confine the hearing to the constitutional validity of Section 377, the five judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A.M. Khanwilkar, Justice D.Y.Chandrachud and Justice Indu Malhotra said that they will not wade into the issue which has not so far arisen.
Telling senior counsel Mukul Rohatgi that "let us for now limit to the vires of Section 377 IPC", Chief Justice Misra said that the question was whether Section 377 is ultra vires or not.
"Let us get out of this maze."
Ruling out expanding the scope of the hearing, he said that all the issues rooted in the rights of the LGBT community like marriage, cohabitation, adoption and inheritance "can be debated when the issue comes before us. Let there be no advance ruling".
The court said this as Rohatgi, appearing for the hotelier Keshav Suri, told the bench that their challenge to the vires of Section 377 IPC was one aspect and they were also seeking protection of their rights under Article 21 guaranteeing life and liberty.
However, this was opposed by Additional Solicitor General Tushar Mehta, appearing for the Central government, who said: "Let us confine to challenge to Section 377."
He said that if the scope of the hearing had be broadened, then the government must be given opportunity to respond to the petition being argued by Rohatgi.
However, this issue saw difference of perceptions within the judges, as Justice Chandrachud said that the declaration by the constitution bench should not be limited to testing the validity of Section 377.
As Mehta insisted that the hearing should be limited to Section 377, Justice Chandrachud observed: "This is a constitution bench."
However, Justice Nariman, along with the CJI, said they should first decide on the constitutionality of Section 377 and then decide on the individual rights that would follow as a consequence.
Describing his clients belonging to a sexual minority and seekinge protection of their rights, Rohatgi urged the bench not to restrict the hearing just to the challenge to Section 377, asking how many of them can later approach the court on individual issues.
He said that sexual orientation - which according to Section 377 IPC is against the order of the nature - is in fact is also an order of nature as it was not a matter of choice and cultivated trait but the one that nature has given through genes.
The constitution bench is hearing a bath of petitions by Suri, Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, a group of past and present IITians who are LGBT and others against its 2013 order, setting aside a Delhi High Court's July 2, 2009 verdict decriminalising gay sex.
Appearing for Johar, senior counsel Arvind Datar argued that criminalizing gay sex was punishing someone for me something "that is innate, nature and God has given". "It can never be against the order of the nature as it is nature itself."
He said that the right to life also means right to choose partners, which he contended was part of the right to privacy, and the right to sexual orientation.
Pointing to the inconsistency of Section 377 with the present day understanding of rights including right to privacy, he said that no law-making body can now enact section 377 as it would totter at the presumption of constitutionality.
As Datar sought to place the mankind at a higher pedestal with the rest of the animal kingdom in the matter of making choices, Justice Malhotra observed that 150 species of animals show homosexual tendencies.
She also referred to British Prime Minister Theresa May expressing regret over UK's colonial anti-gay law and saying that 37 of the 53 Commonwealth countries were still following the law passed under British rule.
The hearing will continue on Wednesday.
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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.
