Section 377 of the Indian Penal Code “insofar as it criminalises consensual sexual acts of adults in private” (since struck down by the Delhi High Court) was imposed on the Indian society by the British rulers, Attorney-General G.E. Vahanvati maintained in the Supreme Court on Thursday.
Continuing his submissions before a Bench of Justices G.S. Singhvi and S.J. Mukhopadhya, he said: “The introduction of Section 377 was not a reflection of the existing Indian values and traditions, rather it was imposed upon the Indian society by the colonisers due to their moral values.” The Bench is hearing appeals against the High Court order.
When Justice Singhvi asked “Why are we not able to come out of the shadows of the British even after 62 years?,” the AG said: “The Indian society prevalent before the enactment of the IPC had a much greater tolerance of homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
Mr. Vahanvati argued that while reading down the Section, the High Court had not discussed “what constitutes [an act] against the order of nature.” He said “it needs to be considered how Section 377 would read, in case the declaration of the High Court is upheld [by the Supreme Court] and applied. It would appear that Section 377 as such would remain, but a proviso would have to be added viz. provided that nothing contained hereinabove shall apply to any sexual activity between consenting adults in private.”
Referring to the incorporation of the words “against the order of nature” in Section 377, Mr. Vahanvati said: “What was perceived to be ‘against the order of nature' in 1860 may not subsequently be perceived to be ‘against the order of nature' particularly in view of a change in society's understanding/tolerance of that thing.”
Pointing out that there was a larger question which might have to be addressed by the court, the AG said: “There are so many aspects of modern day life which by reason of technological, scientific and medical advances have already drastically altered the view of what constitutes the order of nature. For instance surrogacy, IVF [in vitro fertilisation], cloning, genetic modification of seeds, stem cell research, different methods of contraception, etc.”
In his reply, senior counsel Amarendra Saran, appearing for the Delhi Commission for Protection of Child Rights, said: “Courts have limited power in deciding the vires of a criminal law as far as criminalising a particular conduct is concerned.” When he argued that it was primarily for Parliament to declare an act a crime or decriminalise the same, Justice Singhvi observed, “This is a case in which the Executive has come forward asking the court to do the duty of Parliament.”
Mr. Saran said, “The court can refuse it. This kind of delegation of power is not permitted under the Constitution. The division of power among the three wings of the state has been clearly defined in the Constitution.”
Pointing out that the issue needed to be debated in Parliament, counsel said, “The government can't thrust it on the court.” Maybe, the government was afraid of public opinion or not able to muster enough majorities on an issue like this.
Mr. Saran said: “If the arguments of the respondents [supporters of gay sex] are taken to the logical conclusion then sati, dowry, acceptance of gift by the sovereign, smoking marijuana, polygamy/polyandry among Hindus will have to be decriminalised. The arguments based on archaeological findings and history are totally alien for purposes of deciding the issues at hand.”
On the contention that Section 377 was prone to misuse by the police, Mr. Saran said: “Mere possibility of misuse of a statutory provision will not make the provision itself bad. There are adequate administrative and judicial safeguards available to a citizen against misuse of a provision.”