NEW DELHI: Three Supreme Court judges, who are part of a five-judge constitution bench hearing the high-profile challenge to the constitutional validity of section 377 of the IPC, today differed over the scope and extent of examining the penal provision.
The five-judge bench headed by Chief Justice Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra commenced hearing on a batch of pleas challenging the constitutional validity of section 377 of IPC which criminalises consensual sex between two adults of the same gender.
During the hearing, former Attorney General and senior advocate Mukul Rohatgi, appearing for dancer and one of the petitioners Navtej Singh Johar, said, "My life as a sexual minority has to be protected and hearing on the issue cannot be only restricted to just section 377 of the IPC.
There are several rights involved which goes beyond the scope of section 377".
Rohatgi's argument was objected to by Additional Solicitor General Tushar Mehta, appearing for the Centre, who said the reference order was limited to section 377 of IPC and nothing else could be debated in the matter.
Mehta said Rohatgi should confine his arguments to the constitutional validity of section 377.
Justice Chandrachud then said the matter was being heard by a constitution bench and its declaration cannot be limited to merely holding a section in law as constitutional or unconstitutional.
He said the right to sexual orientation was part of the larger rights and the declaration cannot be confined to just sexual orientation.
"You (Rohatgi) have to argue in a much larger way beyond the realm of sexual orientation", Justice Chandrachud said.
CJI Misra and Justice Nariman differed with the view of Justice Chandrachud and said that firstly, it needed to be decided that section 377 of IPC was ultra vires the Constitution or not.
Mehta said they were at the stage of discussing and not got enough time to prepare a reply on the issue.
Rohatgi said, "I am not going to confine my arguments on just sexual orientation. There are various aspects to it. I have a right to argue".
The Chief Justice then said, "Right now the question here is whether Section 377 of the IPC is ultra vires (beyond one's legal power) or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners or whether they can marry. Right to co-habit. These issues are not before us".
The CJI said that no advance rulings could be given on these issues and can only be dealt if the court hold section 377 of IPC ultra vires the constitution.
"Today, we are dealing with constitutional validity of section 377 of IPC and we should not loose focus on it. Today, you have orientation but all other rights can be discussed when the 'lis' (litigation) comes before us", the Chief Justice said.
Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.