The ball is in your court, Bench tells Parliament

Updated - November 17, 2021 12:17 am IST

Published - March 21, 2012 12:37 pm IST - New Delhi

A miniature argument on homosexuality will not help in arriving at a decision which will have a bearing on large sections of society, the Supreme Court observed on Wednesday and wondered why Parliament had not taken it up for discussion and left it for the court to decide.

Justice G.S. Singhvi, heading a Bench hearing a case relating to homosexuality, told Attorney-General G.E. Vahanvati, “We are still not able to reconcile why the legislature [Parliament] has not considered this issue. The legislature, which is the representative of the people, is the right forum to discuss this issue.”

Justice Singhvi told the Attorney-General: “Courts are bound to define law when called upon to interpret [it] in a particular manner but such issues can't be dealt with by the courts alone. There has to be a larger debate. In the Delhi High Court, two judges decided the issue. Here also two of us are going to decide. [Justice S.J. Mukhopadhaya is the other judge on the Bench.] You want us to decide without a full debate.”

Mr. Vahanvati said: “Probably there is no sufficient debate in society for the legislature to take up this matter. There may be a section of society which does not want this matter discussed at all. They [gay] are parading on streets. A vast section of society does not want an exhibition of gays on streets. There has to be a larger debate. The momentum has not reached for Parliament to discuss the issue.”

Not an offence: Centre

In the morning, the Attorney-General clarified the Centre's stand on homosexuality, saying the Delhi High Court judgment decriminalising sex between two consenting adults (Section 377 of the India Penal Code), was acceptable to it. He said the government had decided not to file an appeal and that the Supreme Court would decide the issue.

When the AG justified the change in the Centre's stand on decriminalisation of gay sex, Justice Singhvi asked him whether the government got enlightened by the High Court verdict. The AG answered in the affirmative and said it “learnt and subsequently got enlightened.” There was no legal error in the judgment and “it is acceptable to us.” He said criminalisation of gay sex was a violation of the fundamental rights of homosexuals.

On Additional Solicitor-General P. P. Malhotra making submissions earlier opposing homosexuality, he said this was due to a lack of communication between the law officers and the Home Ministry. Whatever the ASG said was not the stand of the Ministry.

When Justice Singhvi wanted to know the reason behind the enactment of Section 377 in the IPC in 1860 by Lord Macaulay, the AG said that in the 19 century, certain repressive measures were taken in England against the weaker sections and people started leaving the country and taking refuge in other countries, including India. At that time the Church intervened to enforce its moral authority on various aspects of life, including sexual behaviour, and imposed the prohibition “against the order of nature.”

“Human issue”

However, he said, when the IPC was enacted, the British rulers without going deep into the issue included all other forms of sexual acts under Section 377 which were “against the order of nature” and made them a punishable offence. But “Today there has been a behavioural change in society. What was not accepted before is acceptable. Now it has become a human issue and not a sexual issue.”

The AG said he would submit a brief note on the issue.

Arguments will continue on Thursday.

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