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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Tonnes of untreated waste being dumped in landfills in Kedarnath, reveals RTI query
Dehradun, Nov 8: Tonnes of untreated waste continues to be dumped at the landfill sites around the famous Himalayan temple of Kedarnath, causing concern among those who care for the environment as the area is eco-sensitive.
A total of 49.18 tonnes of unprocessed garbage generated in Kedarnath was dumped at the two landfill sites near the temple between 2022 and 2024, an RTI query filed by a Noida-based environmentalist has revealed.
The non-processed garbage generated in the area also showed a rising trend during the period, with 13.2 tonnes of untreated waste generated in 2022, 18.48 tonnes in 2023 and 17.5 tonnes so far this year, according to the Uttarakhand government's response to the query filed under the Right to Information (RTI) Act.
Besides, the eco-sensitive area also generated 23.3 tonnes of inorganic garbage during the period.
However, all of it was processed or recycled, the public information officer of the Kedarnath Nagar Panchayat said in response to the RTI query filed by Amit Gupta.
"The RTI data is shocking both in terms of the quantity of garbage generated and the manner in which it has been left untreated. It proves once again that there is no proper garbage management system in Kedarnath, which is an eco-sensitive area," Gupta said.
"The temple is situated at a height of 12,000 feet, where there are also glaciers. The eco-sensitivity of the area is beyond doubt. The lack of a proper garbage management system in Kedarnath even figured in Prime Minister Narendra Modi's Mann Ki Baat programme last year. Still nothing is being done by the authorities on the ground to transport the plastic waste to the plains and process it," he said.
The two landfill sites near the temple are reaching their saturation point. If things continue in this manner, another tragedy like the 2013 disaster is unavoidable, the activist said.
What makes the situation even more worrying is that the response to the RTI query claims that no complaint was registered or action taken during the period against garbage disposal in an irresponsible manner.
"I have myself been writing to the authorities for the last two years on the garbage issue in Kedarnath. At least half-a-dozen complaints have been filed by me only," Gupta said.
"The NGT and the NMCG have also taken note of my complaints. Sharing my concern, they directed the authorities to do something to rid the holy place located in the ecologically-fragile Himalayas of untreated waste by setting up enough sewage treatment plants in Kedarnath," he added.
The National Mission for Clean Ganga (NMCG) has also written to the Rudraprayag district administration, asking it to take necessary steps to stop the rising pollution levels of the Mandakini river, which flows near the Himalayan temple.
The NMCG issued the directions to the district administration on a complaint filed by Gupta on the basis of an RTI query, which revealed that the absence of sewage treatment plants in Kedarnath is leading to rising pollution levels in the Mandakini, a tributary of the Ganga, with untreated waste being released directly into it.
