New Delhi: The Supreme Court on Tuesday said it would strike down the penal code's Section 377 that criminalises unnatural sex the moment it is convinced the law violates the fundamental rights of citizens as "majoritarian governments" couldn't be expected to take such decisions.
"We cannot wait for a majoritarian government to decide on enacting, amending or striking down a law if it violates fundamental rights. Majoritarian governments are concerned with their votes," Justice R.F. Nariman said.
"Even if we legalise gay sex and decriminalize Section 377 of the IPC, non-consensual gay sex and bestiality would continue as offences under Section 377," the judge, part of a five-member constitution bench, told advocate Manoj V. George.
The advocate was representing some Christian groups that have opposed the LGBT community's plea for decriminalising the penal provision.
As the law stands now, anyone found guilty of sex against the order of nature under this provision can be jailed for life.
The bench that also included Chief Justice Dipak Misra and Justices A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhtora reserved its verdict after hearing arguments for and against the validity of Section 377.
A judgment is likely within a month or so. But going by the mood of the bench it appears the section could be scrapped.
"The moment we are convinced about violation of the fundamental right, the object of these fundamental rights give power to the court to strike down the law," Justice Nariman told George.
That was after the advocate had said the court shouldn't strike the provision down but wait for Parliament to take a call.
"If prostitution is licensed then all health parameters and concerns would be met. Only when it is made illegal that it happens on the sly and all kinds of health concerns arise," the judge added.
Justice Chandrachud said it was "always better to recognise sexual orientation so as to allow people access to healthcare with dignity".
"If you suppress sexuality, it will lead to suppression and there would be no treatment for a lot of diseases like HIV, AIDS and STDs (sexually transmitted diseases)," he said.
George said the term "sexual orientation" couldn't be read interchangeably with the term "sex" used in Articles 14 and 15 that deal with equality.
The counsel said sexual orientation was different from sex and what was illegal couldn't be allowed merely because there was consent between two adults.
Lawyer Harshvir Pratap Sharma, who appeared for some Hindu petitioners, argued that if "consent" was the only factor to determine the legality of a provision, then a "brother and sister marrying with mutual consent" couldn't be termed illegal.
The counsel pointed out that the Hindu Marriages Act and other personal laws, including the Parsi Marriages Act, prohibit marriage between close relatives.
Sharma said if Section 377 were quashed, it could lead to complications even among married couples if the husband or the wife were found to exhibit bisexual tendencies.
There is no law now to deal with such a situation and any attempt by the court to tinker with Section 377 would have far-reaching consequences, Sharma argued.
Senior counsel K. Radhakrishnan, who appeared for a Christian organisation, said decriminalising homosexuality could leave the family system, the foundation of the Indian social structure since the age of the Rig Veda, in a shambles.
"The institution of marriage will be detrimentally affected; the Indian society will be polluted and destabilised; there will be rampant homosexual activities for money which will tempt and corrupt young Indians into this trade," the senior advocate said.
"Further, rampant homosexual activities will occur all over India in hostels where students, youths and employees reside. HIV/AIDS will spread and India will lose its nobility, character and virtuousness, and the State will be compelled to enact more than one statute similar to the Immoral Traffic (Prevention) Act," Radhakrishnan added.
