New Delhi, Feb. 22: The Supreme Court, hearing a challenge to a judgment decriminalising homosexuality, today raised questions of morality and asked for data on HIV/AIDS prevalence among gays and the number of cases under Section 377 against them.
The bench was hearing objections of the Delhi Commission for Protection of Child Rights to the Delhi High Court verdict that excluded adult consensual gay sex, done in private, from the scope of Section 377 of the Indian Penal Code.
The commission argued that Section 377 — often used by police in cases of paedophilia and rape of boys — was required to check exploitation of children. Its lawyer Amarendra Sharan argued that the right to privacy does not entitle consenting adults to commit crimes in private. The high court reasoning was bad in law, he said, because it had ignored public morality.
Morality can be a ground for testing the validity of a law, Sharan said. Tomorrow, dowry-seekers can say that they are being discriminated against by non-dowry seekers, he said. Can they be allowed to challenge the validity Section 304B (dealing with dowry deaths)?
He said the homosexual community was at a higher risk of contracting HIV/AIDS. All the more reason to ban such behaviour, the counsel said.
The bench of Justices G.S. Singhvi and S.J. Mukhopadhyay first asked: How many cases have been registered under Section 377 after 1947? Has it been enough to prove harassment?
Justice Singhvi also asked: Is there any scientific study to show this (the HIV/AIDS case numbers among gays)? Has the government or Naco (National AIDS Control Organisation) done anything on this?
Union counsel P.P. Malhotra intervened to say World Health Organisation studies had shown gays were at higher risk of contracting HIV/AIDS.
Section 377 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 which may extend to 10 years, and shall also be liable to fine.
The law does not mention homosexuals and makes no distinction between sexual acts in private or public. It was, therefore, open to interpretation by the police who could apply it in cases of adult consensual gay sex.
Justice Mukhopadhyay, however, wondered how Section 377 was linked to the gay community. There would have to be a victim, an accused and an unnatural act. Otherwise, the section cannot be invoked, he said, noting that the law did not make carnal intercourse in itself an offence. There would have to be other conditions, such as non-consensual behaviour, to report an incident as an offence.
Justice Singhvi wanted to know the ramifications of diluting Section 377 on other provisions of the law. Sharan gave the examples of adultery and immoral human trafficking, saying these could not be treated as crimes if consensual sex between adults was allowed to all.
The judge steered the case to another area of debate. For example, a youth may want to run naked in the street. That could be a natural right, but would it be a fundamental right, he asked. In such cases, what happens to the right of dignity of others, or the right to privacy, the judge asked.
If I can have five cars, I can have five wives? Why has the law made having more than one wife an offence? he asked. What about the exchange of wives? he asked, trying to point to grey areas in matters of legality and morality.
The court must envisage all these scenarios, the judge said, because nothing remains in absolute terms.
Justice Mukhopadhyay added that in the age of test-tube meat, religious aspects of the law also needed to be looked at. What does each religions personal law say about this? Does it impinge on anyone elses right to religion?
He observed that all the studies regarding the gay community were from Yale, Cambridge and Oxford. What was the position before the British invaded India?