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 that concluded hearing 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 argument advanced by parties 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

Section 377 does not discriminate against anyone, especially LGBT persons, because it applies to everyone who commits the offence. It pertains only to sexual acts.

Striking down the section will lead to an increase in HIV/AIDS cases

If choice of sexual partner is made a fundamental right, there will be no law to stop bestiality and incest

If section 377 goes, married homosexual men will get into consensual relationships and threaten the institution of marriage

Any kind of intercourse that is not penile-vaginal is unnatural because each organ has its proper use. For instance, the mouth is an organ for eating

Striking down section 377 will take away the limits currently imposed by public and social 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 sex-

Public morality cannot prevail over constitutional morality, and the rights of LGBT persons deserve to be protected under the Constitution

Homosexual or same-sex sexual orientation is part of the order of nature; it is not a mental disorder, which is globally and nationally accepted position of medical practitioners

A nine-judge bench hearing the matter of ‘Justice Puttuswamy and another versus Union of India’ made sexual orientation an inherent aspect of an individual’s privacy, and read the right to privacy into Article 21 of the Constitution. Other judgments have also read the right to choose sexual partner as part of Article 21 (right to life and liberty). Thus, Section 377 is discriminatory towards LGBT persons, who too must have the rights guaranteed by the Constitution.

There are no laws or rules that specifically discriminate against LGBT persons because they are not written into rules in the first place. The invisibilisation results in greater stigma and violence.

ual i ntercourse. 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 t he 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.

Section 377 is not simply a matter of consent between adults, but about the business of life, including professional life, mental health, feeling like equal citizens of the country.

Homosexuality is part of Indian culture and was not stigmatised prior to colonial rule

While the NALSA judgment of the Supreme Court of 2014 granted self determination of gender identity, among a galaxy of rights, section 377 impedes the most basic aspect of their lives, which is their sexuality, as it continues to criminalise them

Section 375 of the Criminal Law (amendment) Act criminalizes

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 mani- non-consensual non-penile vaginal intercourse between a man and a woman, thus making section 377 redundant on this aspect. Since this law makes a distinction between consensual and no consensual non-penile vaginal intercourse between a man and woman, section 377 discriminates against consenting adult gay men.

The new Mental Healthcare Act clearly lays down that there will be no discrimination to access mental healthcare on basis of sexual orientation, which is an acknowledgement that discrimination against LGBT persons does occur.

festation 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.