It is necessary to construe a statute in terms of modernity, says counsel

Parents of gays, lesbians, bisexuals and transgenders told the Supreme Court on Thursday that the Delhi High Court judgment decriminalising sex between two consenting adults should not be interfered with.

Appearing for them, senior counsel Fali S. Nariman submitted before a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that Section 377 of the IPC created a sense of fear among them which was against their right to life and liberty guaranteed under the Constitution and he justified the HC judgment.

Even contraception was considered unnatural at one point of time. He pointed out the anachronism of interpreting an 1860 law and said: “It is necessary to construe a statute [the IPC] in terms of modernity.”

Counsel pointed out that things had changed so much in recent years that family planning and population control now find a place in the Constitution. “What are the petitioners moralising about? In 1860, the thoughts that prevailed were of a different kind. We live in different times. We have to move with the times.”

Mr. Nariman said homosexuality was originally treated as a sin by the church and later came to be formally treated as a crime under the law in England. But English law was very clear on the definition of buggery and what punishment it would entail.

He said all sexual offences postulate some form of harm or injury and some deprivation caused to the victim and no consent. But the scope of Section 377 was such that when there was consent between two adults in private there could be no offence. “Hence, an unnatural act per se cannot be construed as an offence,” he contended. For an unnatural act to fall within Section 377 ambit, it would also have to be against the order of nature, he argued. The term ‘against the order of nature' was ‘hopelessly vague.'

Counsel said “any homosexual act may be unnatural but not against the order of nature and hence not punishable by Section 377.” Mr. Nariman was of the view that this Section envisaged harassment. In the absence of what was illegal, there was a possibility that the law would be misused to the detriment of an individual. Mr. Nariman will continue his arguments on March 13 after the Holi holidays.

In the morning, Additional Solicitor-General Mohan Jain, produced statistics about the spread of AIDS. Reading out the statement, he said: “As per HIV estimates on December 1, 2010, an estimated 23.9 lakh people lived with HIV/AIDS in the country. Eighty-three per cent of them fell in the age bracket of 15 to 49. The incidence of the disease was the highest in Andhra Pradesh (5 lakh), Maharashtra (4.2 lakh), Karnataka (2.5 lakh) and Tamil Nadu (1.5 lakh). They account for 55 % of the infected. Another 22 per cent of the infected live in West Bengal, Gujarat, Bihar and Uttar Pradesh accounting for more than a lakh.”

Punjab, Odisha, Rajasthan and Madhya Pradesh have 50,000 to a lakh HIV infected and they account for another 12 per cent of the infected, according to the data.

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