The Supreme Court Tuesday asked the Attorney General G. Vahanvati to assist the court in the hearing of the plea challenging the Delhi High Court verdict decriminalising the consensual sex between two consenting adults of the same sex.
A bench of Justice G.S.Singhvi and Justice S.J. Mukhopadhaya asked Vahanvati to assist the court in the light of the union cabinet’s Sep 17, 2009 decision asking the country’s first law officer to assist the apex court in arriving at an opinion on the correctness of the high court judgment.
The court also observed that while the cabinet had asked the attorney general to assist the court in the hearing of the matter but it did not have the opportunity of his assistance and instead he delegated it to Additional Solicitor General Mohan Jain.
Before asking the attorney general to assist the court, the court had pulled up the central government for its “neutral” stance on the issue and described its approach as “casual”. The court had earlier also slammed the “phenomenon” of the government taking no position in the matter.
Taking note of the fact that the government had taken a definite position during the hearing of the matter before the high court, the apex court bench described a peculiar that it was non-committal on the matter before the it.
“The government comes with the stand that it is neutral. Which one is of its stand had to be accepted, the affidavits filed in the high court or its stand of neutrality in the Supreme Court,” the court wondered.
The government also came in for punching for not amending the Section 377 IPC in last six decades despite recommendation of the Law Commission to that affect.
“The highest legislature doesn’t have time to consider these issues. How long will the people of this country wait for the legislature to find time to consider these issues,” asked the court.
Appearing for renowned director Shyam Benegal, senior counsel Ashok Desai told the court that Section 377 IPC could not be allowed to remain on statute when it enter the bed rooms of the people. He said that state must stop at the doorsteps of the bedroom.
Desai argued said that Section 377 IPC has been cast so wide that any relationship between man and man, man and woman and woman and woman that does not procreate is un-natural and an offence under the law. He told the court that Section 377 IPC was a creation of Victorian mind-set.
He referred to the a survey to point out that people indulging and also admitting that they were indulging in sex that was against the order of the nature was increasing.
As Justice Mukhopadhaya sought to contest the figures of such people by referring to diametrically opposite opinion polls during elections, Desai told the court that it was not a question of percentage number of these people and asked “can we shut our eyes to the existence of such people indulging in oral and anal sex.”
Justice Mukhopadhaya said that when the number of these people becomes 50 percent, then people would accept them.
At this Desai said that fundamental rights were minoritarian and in essence, are against the majority.
“I am against majoritarianism. I am a minority and my contention is that I can not be suppressed,” Desai told the court.