Senior counsel Amarendra Saran told the court during the hearing on a batch of petitions challenging the Delhi High Court’s July 2, 2009 verdict holding that Section 377, which criminalises gay sex among consenting adults, was a violation of fundamental right
The apex court bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya was told that the order of nature as mentioned in Section 377 of IPC had attained a “particular meaning and a traditional meaning” as understood by society.
Section 377 IPC which deals with unnatural offences reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with….”
Saran who appeared for the Delhi Commission for Protection of Child Rights (DCPCR) told the court that “right (life or personal liberty) under Article 21 is not absolute and can be controlled by law. The law must provide for reasonable procedure that is the only requirement under the code of criminal procedure”.
He told the court that when Article 15 provides for no discrimination on ground of sex it means gender and not the sexual orientations.
He told the court that public morality was the same as constitutional morality and should not be seen as distinct in the instant case.
The court asked how could the test tube babies and surrogate mothers could be seen in the understood meaning of the order of nature. The court asked if in both cases it was in conformity with the order of nature and carnal intercourse as provided under Section 377 IPC.