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