The Supreme Court on Wednesday started hearing the debate on legality of decriminalising same sex behaviour in private among consenting adults by asking contestants whether the order of nature changes with time.
The court was hearing a bunch of petitions challenging a Delhi High Court judgment on July 2,2009,which ruled that sexual intercourse among adults of the same sex is not a criminal offence under Section 377 of the IPC.
Section 377,framed in 1860,is titled unnatural offences and criminalises carnal intercourse which are against the order of nature. It does not specifically define any of the three terms.
The provision reads: 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 of either description for term which may extend to 10 years,and shall also be liable to fine.
So who is the expert to say what is unnatural sex? The meaning of the word has never been constant, a Bench of Justices G S Singhvi and S J Mukhopadhyaya said.
We have travelled a distance of 60 years. Now it is test tube babies,surrogate mothers. They are called discoveries. Is it in the order of nature? Is there carnal intercourse? the Bench asked
To this,advocate Amarendra Saran,who represents Delhi Commission for Protection of Child Rights,said the order of nature does not change with time. The Union Home Ministry,government bodies and private groups are among those fighting the July 2009 judgment in the SC.
The opposite side,including Naz Foundation,which had taken the cause to the High Court,have advocates Fali Nariman,Shyam Divan and Anand Grover,among others,to represent it.
The High Court had declared that the interpretation of Section 377 IPC to criminalise homosexual behaviour done in private among consenting adults violates fundamental rights like the right to protection of life and personal liberty,to equality and the right to prohibition of discrimination on grounds of religion,race,caste,sex or place of birth.
The penal provision,however,continues to apply in the case of sex involving minors and coercive sex.
The questions came from the Bench as soon as Saran began submitting that the High Court had not considered that Constitution imposes reasonable restrictions on citizens in the exercise of their rights.
He argued that rights cannot be exercised in violation of the existing law (Section 377).
But the Bench intervened to ask Saran to first explain the legal meaning of words like natural,unnatural and carnal intercourse used in Section 377.
The court said they would handle the case on a step-by-step manner: First look into the meaning of the terms,then look into the High Court judgment and then see whether Section 377 IPC is only a reasonable restriction to the citizens fundamental rights under Articles 14,15 and 21 of Constitution.