Raising hopes among those who have challenged the Indian Penal Code Section 377, which criminalises same-sex relations between two consenting adults in private, the Supreme Court Tuesday observed that it does not wait for “majoritarian governments” to act if it finds that a law violates fundamental rights.
As a five-judge Constitution Bench led by Chief Justice of India Dipak Misra reserved its verdict on a clutch of petitions challenging the Constitutionality of Section 377, Justice R F Nariman, one of the five judges, told parties opposing the plea that the court cannot do so if the violation of fundamental rights is involved.
“The moment we are convinced that there is a violation of fundamental rights, we cannot leave anything to the legislature… The whole object of the fundamental rights chapter is to strike down laws that violate fundamental rights which majoritarian governments may find difficult to do because of vote bank concerns etc. If the court finds the violation of fundamental rights, we don’t wait for majoritarian governments to act,” Justice Nariman said.
The bench, also comprising Justices A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was replying to advocate Manoj George who, appearing for two Christian organisations, contended that holding the law unconstitutional would have a cascading effect on personal laws of many communities and said “Parliament must deal with it in its legislative wisdom”.
The bench indicated that it would only read down Section 377 in so far as consensual acts are concerned with CJI Misra observing that there will be anarchy if it goes away entirely. “We are only on consensual acts… Consent is the fulcrum… Your enjoyment cannot offend the dignity of others.”
George referred to the Parsi Marriage and Divorce Act under which unnatural offence was a ground for divorce. Justice Nariman replied, “yes, an unnatural offence may include other parts of Section 377 such as bestiality”.
Justice Chandrachud did not agree with the view of the counsel that homosexuality was one of the reasons for the spread of HIV. He said it’s the suppression of sexual orientation, and not its recognition, that has contributed to the spread.
“South Africa is the best example,” he said, adding that its President had refused to accept international aid for the HIV-affected saying the country did not have the problem. But the South African Constitutional court reversed that and as a result, South Africa could get the aid, he said. “It’s the suppression that’s the problem… all suppression is,” he said.
Joining issue, Justice Nariman referred to prostitution and said licensing it would help address many health concerns and shoving it under the carpet would fetch no results. “The issue is prohibition in all forms,” he said. George disputed contentions that Section 377 was Victorian era morality. To this, Justice Nariman said, “it’s from Leviticus, from Bible”. George added, “from Leviticus, from Genesis…”.
Senior Advocate K Radhakrishnan, appearing for Trust God Ministries, also said that homosexuality was one of the reasons for the spread of diseases like AIDS. Justice Chandrachud objected to this and said migrant workers also spread HIV. “So going by your logic, all sexual intercourse will have to be banned… even heterosexual,” he said. Justice Indu Malhotra asked advocate Radhakrishnan “sexually transmitted diseases occur among heterosexuals, don’t they?” To this, he replied that “percentage-wise” it was more among homosexuals.