The Supreme Court on Tuesday reserved its verdict on Section 377 of the Indian Penal Code, which criminalises homosexual acts. This came after it finished hearing arguments on a batch of petitions demanding amendments to the section, LiveLaw reported. The hearing had started last week.
On Tuesday, the court said it would strike down the law if it is convinced that it violates fundamental rights. The court has asked lawyers to submit their final written arguments by Friday.
Advocate Manoj George, who is representing two Christian organisations that are intervenors, said that the constitutional validity of the section should be left to Parliament, Bar and Bench reported. In response, Justice Rohinton Nariman said, “The moment we are convinced there is a violation of any fundamental right, we will strike it down and not leave it to legislature.”
“The whole object of fundamental rights chapter is to strike down those laws which would otherwise not be struck down by majoritarian governments,” Nariman added. “We won’t wait for majoritarian governments to enact or delete.”
A five-judge Constitution bench of the Supreme Court last week began hearing six petitions and interventions, urging it to reconsider its own 2013 judgement, which set aside a 2009 order by the Delhi High Court decriminalising sex “against the order of nature”.
Arguments for Section 377
George argued that homosexuality offends people’s religious sentiments. But Chief Justice of India Dipak Misra responded that one person’s dignity cannot be violated by another person’s sexual orientation, according to LiveLaw.
When George said that adopting the Yogyakarta Principles would lead to recognising the right of marriage of homosexual couples, Dipak Misra said the principles allowed people to live together as family even without formal marriage. The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity.
In response to George’s claim that homosexual activity could spread HIV, the court said that legally recognising such acts would allow the state to spread awareness about the health of gay couples, LiveLaw reported.
Last week’s hearings
In hearings last week, Chief Justice Dipak Misra had said that the court would not go by “majoritarian morality” in the case. “Constitutional questions cannot be decided by referendum,” he had said when a lawyer arguing in favour of the law claimed that popular opinion was against homosexuality.
Justice Indu Malhotra had said that homosexuality “is not an aberration, but a variation”. She had noted that members of the Lesbian, Gay, Bisexual and Transgender community are forced to cave in to family and societal pressures and marry people from the opposite sex.
Appearing for a petitioner group, Voices Against 377, lawyer Shyam Divan had referred to the Supreme Court’s judgements on the right to privacy and in the Hadiya case, and said Section 377 had “a chilling effect on freedom of expression under Article 19 of the Constitution”. Senior lawyer Krishnan Venugopal had said the law is used to harass the LGBT community.
The Centre did not take a stand and left the decision on consensual gay sex “to the wisdom of the court”. Additional Solicitor General Tushar Mehta said the Union of India does not contest an individual’s right to choose a partner.