Homosexuality, lesbian or any other relationship against the order of nature was in violation of Section 377 of the Indian Penal Code and should be construed as an offence, argued senior counsel Amarendra Saran in the Supreme Court on Thursday.
Appearing for the Delhi Commission for Protection of Child Rights challenging the Delhi High Court judgment reading down the Section, Mr. Saran told a Bench of Justices G.S. Singhvi and S.J. Mukhopadaya — hearing appeals relating to decriminalisation of gay sex between consenting adults — that the High Court had failed to take into account various aspects related to homosexuality which could adversely affect the physiological state of a child.
He argued that Section 377 had the full force of law and needed no reading down.
Intervening, Justice Singhvi said: “Homosexuality should be seen in the context of changing society, as many things which were earlier unacceptable have become acceptable with passage of time. Phenomena of live-in relationship, single parents, artificial fertilisation and surrogacy have become normal.
“There is a case where a man is unmarried but wants to be a father and engage a surrogate mother. Thirty-forty years ago it was against the order of nature but now artificial fertilisation is a thriving business. Many things which were considered immoral 20 years ago, have become acceptable as society is changing.”
When he referred to the paintings and sculptures at Khajuraho and said gay sex was not an offence prior to 1860, Mr. Saran said that social issues could not be decided on the basis of sculptures. They should be decided on the basis of Articles in the Constitution.
To this, Justice Singhvi said, “it is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse.”
Mr. Saran argued that the order of nature as mentioned in Section 377 had attained a “particular meaning and a traditional meaning” as understood by society.
He told the court that public morality was the same as constitutional morality and should not be seen as distinct in the instant case.
To a question from Justice Mukhopadaya, counsel said “curtailment of the right complained of is against the order of nature.”
Arguments will resume on February 22.
This article has been corrected for a typographical error
Keywords: Homosexuality, lesbians, gays
"It needs to be decided by a vote of legislature not by a writ of
judiciary"- The problem with that is that Parliament is full of people
like Lalu whose only talent is making slapstick comments and decrying
"Western culture" without understanding in the least what he is talking
about. At least the judiciary has some people who are true to the law
and to the principles of jurisprudence, so that the common man gets
help.
Section 377 of IPC is a much diverse social and ethical issue. It needs to be
decided by a vote of legislature not by a writ of judiciary. Judiciary is not
accountable to me. What if some great social crisis happens afterwards?
Parliament/state legislatures should try to enact proper legislation for this
purpose. Only collective wisdom of democratically elected people from various
social and cultural backgrounds must be allowed to decide such issues.... where
is doctrine of ministerial responsibility now, which is a basic feature of our
Constitution.
"Additional Solicitor-General (ASG) P.P. Malhotra, appearing for the
Ministry, argued that the Indian society is different from other
countries and it cannot imitate the practices prevailing in foreign
countries."
Yes Indian Society is different because inherently it was never
anti-gay ... It is the British who brought their Victorian/Christian
morality to bear upon Indian society. Indian society has always been
about live and let live.
Enough is enough, civil society doesn't need more provocation- we
don't elect these officials to decide what is moral. Is corruption
moral...so please fix that first.
Please stay out of people's bedroom (this is not a request...it is
an order).
Constitution and law are to enable and support the citizens for living
a healthy life and not press them against their will. Homosexuals and
lesbians do not offend the citizens as much the heterosexuals do, in
terms of percentages and numbers both. Plus they do not burden over
populated country of ours as mentioned earlier by Swarga, even after
contributing equally towards the society. Nothing can surpass the law
of nature not even the constitution or jurisdiction.
All the citizens should be treated equally by law and constitution
immaterial of their Sex, Caste, Race, Religion, Age, Sexual
orientation. For e.g. by law one cannot be converted to a hindu unless
born to one, same should work for sexuality that law cannot convert
sexual preference of an individual unless that is what nature chooses.
Either law has nothing to do with one's sexual orientation.
It is simply extremist perception of few closed minded people who
cannot empathize with the world, probably on any grounds.
India is a secular country. When the IPC was devised, 19th century
Christian morality was the motivation for the law in question. The law
in unconstitutional if it infringes on the right of (adult) consenting
citizens. If no harm is being done to the people involved, the State had
no right dictate what behaviour is right and wrong.
The justices strike down the law based on common law precedent in the
UK, where it is no longer criminal to engage in homosexual acts.
The law they are all arguing about is an old Victorian law that has long since been abandoned in the UK. Some cultures in our country have been open to sexual minorities, as they have been portrayed in the Kajuraho and the Kamasutra. These are not just sculptures or books but a living testimony that is a part of some of the cultures in our country. Even a conservative culture like the Tamil culture has pioneered minority rights by including an option for a third sex in official documentation, making it the first state in India to do so. So long as the ethical way of life, i.e. they live in a committed relationship, avoid licentiousness, they can function just like any other member of our society. I am sure they can give loving and stable homes to millions of homeless children in our country.
Law of a country or countries cannot define what is the actual order of nature. It is the nature itself define and shape the order with due course of time. so if something happen naturally to gene or DNA due to which man or woman gains others features then what is against the order of the nature. it is the nature itself and so naturally.
Democracy is all about people (irrespective of age, sex, race, caste or religion) having the freedom to practise their beliefs freely without fear or discrimination. If India wishes to be known and respected as such a country then our society has to accept and adapt to that view. If not, India cannot be considered as a true democracy and will be viewed as one that just exists by name.
Homosexuality or Lesbianism or any such status is not a normal state of affair. Therefore, it has to be dealt differently. It can be genetic, developed, or even forced. In the latter two cases the dealing should be different from the other once. But determination of status become difficult as the cases would be much more subjective than objective. Hence, the dealing should be psychological, normative, and humane than stringent law that does not oft show such erudition. The constitution is right. We do not have to change it that we need not accept homosexuality as a way of life.But dealing the case should be humanitarian than the ordinary law enforcement when other violations are not involved.
It is nice to see that the court is critically examining the supporters as well as the opposition of the judgment.I would like to see LGBTQ citizens of the country to get legal support to battle the discrimination that they suffer at workplace, in society overall. Fingers crossed!
As a country with burgeoning population problem, it should be grateful to many man or woman who does not feel the need to reproduce. Homosexuals pay taxes, contribute to society, but do not add to the burden of over-population. Why do you want to force them to marry and have children? Doesn't India have enough underfed children?
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