New Delhi: The Supreme Court on Tuesday reserved its verdict on the decriminalization of homosexuality under Section 377 of the Indian Penal Code after counsels appearing for the intervening parties concluded their arguments.
A five-judge bench comprising Chief Justice of India Dipak Misra and justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra had commenced the hearing on a batch of petitions challenging the constitutional validity of Section 377 on 10 July.
The petitioners had argued that Section 377, in so far as it criminalizes homosexuality, violates Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), Article 19 (freedom of speech and expression, and to form associations or unions) and Article 21 (right to Life) of the Constitution of India.
However, Manoj George, the counsel appearing for one of the intervening parties, argued that the question of decriminalization of homosexuality was for Parliament to decide and not the court.
To this, justice Nariman remarked “One may decide to enact, one may decide not to.. (the court) is not going to wait for a majoritarian government to protect the fundamental rights of the citizens."
George further relied upon a study conducted by a Washington-based organization to argue that sexual orientation was “not innate" as it was not supported by scientific evidence. He also submitted that Section 377 did not violate Article 15 of the Constitution as the Article prohibited discrimination on the basis of “sex" and not “sexual orientation".
K.S. Radhakrishnan, who also appeared for one of the parties, argued that Section 377 did not criminalize “sexual orientation" but penalized “ceratin acts" and stated that criminalisation of such acts was necessary to prevent the risk of HIV AIDS.
Section 377 criminalizes sexual intercourse that is penile and non-vaginal, deeming it “against the order of nature". The law affects the rights of the lesbian, gay, bisexual and transgender (LGBT) population, in particular, but its provisions can also be applied to heterosexual citizens.
The issue has been in court for many years. In 2009, Delhi high court had ruled that Section 377 of IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal", was unconstitutional.
The judgement was, however, overturned by a bench of justices G.S. Singhvi and S.J. Mukhopadhyaya of the Supreme Court in December 2013. It reinstated the 1860 law that criminalizes consensual sex among homosexual adults.
In January 2018, a bench headed by Chief Justice Misra had agreed to consider the implication of the privacy judgement of August 2017 and take another look at the constitutional validity of Section 377, in response to a plea by representatives of the LGBT community, including Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.