Won’t wait for lawmakers:sc
BIG STEP Apex court bench hearing pleas on Section 377 stresses on the role of courts in protecting minority rights
NEW DELHI: The Constitution empowers the courts to strike down an offending law the moment it is found to be unconstitutional, the Supreme Court said on Tuesday, rejecting the idea of letting Parliament decide on Section 377 of the Indian Penal Code (IPC) that criminalises consensual same-sex adult sexual relationships.
“We don’t wait for majoritarian governments to strike down the offending law.
They may enact, repeal or do whatever they want, but the moment we find that a law violates fundamental rights, we strike it down,” justice Rohinton Nariman observed, stressing on the role of the courts in protecting minority rights.
Nariman is a part of the fivemember bench including chief Justice of India Dipak Misra, justice AM Khanwilkar, justice DY Chandrachud and justice Indu Malhotra thatconcludedhearing a clutch of petitions challenging the colonial-era law on Tuesday, and reserved judgment.
During the hearing, the bench said it disagreed that reading down of the penal provision would lead to a spread of HIV-AIDS, an argumentadvanced byparties arguing for retention of the law.
Chandrachud and Malhotra said heterosexual couples also transmit HIV-AIDS and wondered whether the court should make sexual intercourse itself a crime.
Advocate Manoj George, who began his arguments against decriminalisation of homosexuality for Apostolic Churches Alliance and Utkal Christian Council, argued it was up to Parliament to repeal or read down the law.
The National Democratic Alliance government has chosen not to take a stand in the matter. It has left it to the court’s wisdom to decide the case but asked the court to clarify that the right to choose a partner should not extend to “perversions like incest” or questions of civil rights.
The court also rebuffed the argument that the prohibition of gay relationships will prevent spreading of HIV-AIDS.
Chandrachud said,“public acceptance of people living in gay relationships will help meet health concerns and control the spread of HIV.”
He cited instance of the transition that took place in South Africa after a constitutional court there ordered the government to accept homosexuality as a norm.
The judge said same-sex couples live without any access to medical care.
“They are more prone to contract and spread sexually transmitted diseases. All suppression is wrong,” he observed.
“The cause of sexually transmitted diseases is not sexual intercourse but unprotected sexual
intercourse. A village woman may get the disease from a husband who is a migrant worker. This way you would now want to make sexual intercourse itself a crime,” the judge told senior advocate K Radhakrishnan, who appeared for Trust of God Ministries, arguing for retention of Section 377. Malhotra asked: “So heterosexual people do not transmit HIV?”.
Nariman agreed with other judges on the bench and observed prohibitions never resolved social issues.
“Take prostitution for instance. If you licence prostitution, you control it and then see how it addresses public health concerns. If you kick it under the carpet, owing to some Victorianera morality, it will only lead to health concerns,” the judge said.
Radhakrishnan pointed to a report from the American Psychiatric Association, which attributed the spread of HIV to the homosexual population. However, Meneka Guruswamy, appearing for the IIT petitioners, pointed out that in fact, Radhakrishnan had mixed up his reports.
On George’s argument that “carnal desire”, with or without consent, is an offence under Section 377 as it is against the order of nature, the court asked him to explain the term “order of nature.”
Is it sex only for procreation,” Chandrachud asked. The judge summed up the arguments that were made by those opposing the petitions and said: “So what you want to say is Love you may, so long as there is no physical manifestation
of your love.” Radhakrishnan said that Section 377 is a modern medico-legal aid of society.
“India will lose its morality, stability and virtuousness if Section 377 were to be struck down,” he said.
George presented the judges with a list of 30 sexual orientations, including such terms as androsexual, gyneosexual and ‘recip’, which was countered by Chandrachud, who pointed out that simply because something is available on the internet does not make it valid or authoritative material.
Recip, as per the definition, is when a person is attracted to someone who is attracted to them in the first place. “This is not a sexual orientation,” said Chandrachud.