Homosexuality may be abnormal,but it is not unnatural,the Supreme Court said today,and challenged anti-gay groups to point out even a single piece of penal law in India under which homosexuality in particular is a punishable offence.
Homosexuality may be abnormal for some,unnatural for some others. All abnormal sex is not unnatural. There is a difference between unnatural,natural and abnormal. It has to be considered individually. And in each case it has to be proved that an individual act was against the order of nature, the court said,questioning the very logic behind the government generalising homosexuality as an unnatural offence under Section 377 of the Indian Penal Code (IPC).
The court was refuting the argument by anti-gay groups that any act of sex which does not lead to procreation is against the order of nature and unnatural under Sec. 377 of the code.
A bench of Justices G S Singhvi and S J Mukhopadhyay is hearing a bunch of petitions challenging a Delhi High Court judgment of July 2,2009,decriminalising sexual intercourse among adults of the same sex.
The court questioned whether the framers of the IPC had,in the first place,ever intended the section to include homosexuality in its ambit as an unnatural offence. It pointed out that the act was not classified as an offence up to 1860,the year the IPC was framed.
It was no offence in 1835,1845,1850s. 1860 onwards it is an offence, the bench said.
In this context,the bench noted that Sec. 377 does not mention homosexuality specifically,it only says carnal intercourse against the order of nature is punishable.
When senior advocate Amarendra Saran,representing Delhi Commission for Protection of Child Rights in court against gay groups,insisted that the section applied to all carnal intercourse,the bench shot back: Homosexuality may not necessarily be connected with carnal intercourse. Homosexuality is a very wide term. Is there a prohibition of homosexuality under any penal law… No,there is no law saying homosexuality is unnatural.
Applying the expression against the order of nature in Sec. 377 to modern sensibilities,Justice Mukhopadhyay asked,In modern science if a male or female gynecologist physically checks their patients private parts,there is of course invasion,but is this against the order of nature?
Society has changed and what was considered immoral 20 or 30 years ago is natural today, the bench said.
The court said society had transformed over time,showing an increasing tolerance of live-in relationships,single parenthood and surrogacy. About the last,it said,Years ago,it was against the order of nature. Today,it has become a business.