The Delhi High Court judgment, declaring ultra vires Section 377 of the Indian Penal Code relating to unnatural sex between two consenting adults and holding that it is violative of the right to privacy, is clearly erroneous, Amarendra Saran argued in the Supreme Court on Wednesday.
Making his submissions before a Bench of Justices G.S. Singhvi and S.J. Mukhopadaya, the senior counsel appearing for the Delhi Commission for Protection of Child Rights, said the right to privacy did not confer any right on consenting adults to commit an act which was illegal. It “does not confer any immunity to crimes committed by consenting adults in private.”
Counsel noted that the High Court, while reading down Section 377 had held that it was constitutional morality alone that could pass the test of compelling state interest and public morality had no role to play. But “public morality has been a very important consideration in framing a law as is evident from the provisions contained in Articles 19, 25 and 26.”
The Bench intervened and wanted to know from counsel whether there was any data to show that Section 377 of the IPC had actually been used to harass the gay community and whether the risk of HIV/AIDS was higher among those people. Mr. Saran said the community had a higher risk of contracting HIV/AIDS and that was all the more reason to ban such behaviour.
The Bench asked counsel: “How many cases have been registered under Section 377 after 1947? Has it been enough to prove harassment?”
The Commission opposed the High Court decision on the ground that this provision, which had stood the test of time for about 150 years, was required to check exploitation of children. Mr. Saran told the court: “Tomorrow dowry-seekers can say that they are being discriminated [against] by non-dowry seekers. Can they be allowed to challenge the validity of Section 304 B IPC (dealing with dowry deaths)?”
Justice Singhvi asked counsel “whether there was data to back its [commission's] claims. Is there any scientific study to show this? Has the government or the National Aids Control Organisation done anything on this?”
Additional Solicitor-General P.P. Malhotra, appearing for the Centre, said several studies had been conducted and there was enough data.
Justice Mukhopadhyay wondered how the gay community could come under the sweep of the Section when it did not make carnal intercourse per se an offence.
Justice Singhvi said a member of the younger generation might want to run naked on the street. That could be a natural right “but is it a fundamental right? In such cases what happens to the right of dignity of others, or the right of privacy? What about exchange of wives?” the judge asked and said the court must envisage all these scenarios.
