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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Mhadei row: Goa CM asks Karnataka govt to follow cooperative federalism
Panaji (PTI): Goa Chief Minister Pramod Sawant has invoked the "cooperative federalism" principle while targeting the Karnataka government amid the Mhadei river water sharing dispute between the two states.
"They (Karnataka) speak about stopping the supply of vegetables or tourism inflow (to Goa). We never use such language. India can go forward with cooperative federalism. We are Indians first and Goans later," the chief minister told the legislative assembly on Friday after opposition leader Yuri Alemao claimed that Karnataka had threatened to stop vegetable supplies to Goa.
Goa and Karnataka are embroiled in a dispute over sharing the Mhadei river water. The BJP-ruled Goa has accused the Congress-governed Karnataka of planning to divert the river water by constructing two dams.
Sawant had said that the Goa government would file a contempt petition in the Supreme Court against Karnataka for carrying out activities that are aimed at diverting the Mhadei river water.
After the House passed the demands for grants for agriculture, Sawant said Goa has reduced the horticulture import by 30-40 per cent, whereas horticulture commodities' export has gone up by 20 per cent.
He stated that the state-run Horticulture Corporation has been procuring vegetables and fruits from farmers in various states and selling them through stalls.
The chief minister mentioned about a young farmer, Varad Samant, who has been providing vegetables of Rs 50 lakh every year to the state horticulture department.
"I have met this young farmer who is in his 30s. He told me that he earns a net 60 per cent profit from the vegetable supply business," Sawant said.
He said the government has focused on the agriculture sector. Citing the Swayampurna Goa Scheme, he said millet production is being boosted.
Referring to the demands of the Opposition, the chief minister said, rather than increasing support price for various products, the government is contemplating the possibility of providing a hundred per cent subsidy to farmers involved in community farming.
"65,500 farmers are registered with the department. They are eligible for facilities like Krishi card and Kissan credit card. They can now walk into the bank and avail of loan up to Rs 1 lakh. If any bank refuses to lend, tell me. Because the guarantee of your loan is PM Modi's guarantee," he added.
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