The Supreme Court Wednesday assailed the “new phenomenon” of the government not taking any position on the Delhi High Court verdict decriminalizing consensual gay sex.
A bench of Justice G.S.Singhvi and Justice S.J.Mukhopadhaya said: “It is a new phenomenon. The state says we are neutral. He (Additional Solicitor General Mohan Jain) says that he has instruction from the attorney general to assist the court.”
The court’s remark came when counsel Huzefa Ahmedi, appearing for the Muslim Personal Law Board, submitted that “so long law remains on the statute book, it is the constitutional responsibility of the State to uphold it”.
Ahmedi said the government cannot say that it would not defend the provision of the statute. It has a constitutional obligation to uphold a law and it could not abstain from it, he added.
The court was hearing a batch of petitions challenging the July 2, 2009, Delhi High Court verdict which held that Section 377 of the Indian Penal Code (IPC), insofar as it criminalizes the consensual sexual act between adult males in private, is violative of Articles 21, 14 and 15 of the Constitution.
“The provision of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors,” the high court said, also clarifying that by “adult”, it meant everyone who is 18 years of age and above.
Faulting the high court judgment, Ahmedi said that “the right to privacy is not by itself a fundamental right but only a penumbra right and only certain facets of privacy fall within Article 19(1)(a) or Article 21.”
“Even if it be conceded that consensual sex between two adults in private would come within the right to privacy and dignity, it can be restricted on the principles of morality, decency and health,” he argued.
In determining the morality and decency, regard must be had to existing social realities based inter alia upon the religious beliefs of all the major religions practiced in the country, Ahmedia said, adding that 76 countries in the world still treat homosexuality as a crime.
Referring to the Constitutional Assembly debate, Ahmedi said that the use of expression ‘sex’ under Article 15 of the Constitution was in the context of the gender and not on the basis of ‘sexual orientation’.
Earlier, appearing for the petitioner Apostolic Churches Alliance, senior counsel V. Giri said that there was inherent contradiction between the purpose for which Naz Foundation was working and their stand on gay sex.
While the Naz Foundation was working amongst the HIV affected people and wanted to bring them back in the mainstream, on the other hand, it wanted to legitimize the gay sex that was admittedly contributing to the spread of AIDS, he said.
