Constitution Bench reserves its judgment on the petitions to free private homosexual acts between adults from criminality.

Public acceptance of people in gay relationships will help meet health concerns and control the spread of HIV, Justice D.Y. Chandrachud told lawyers who argued in support of criminalising homosexuality, on Tuesday.

Same sex couples living in denial with no access to medical care were more prone to contracting and spreading sexually-transmitted diseases, Justice Chandrachud observed. “All suppression is wrong.”

Justice Chandrachud, who is part of the five-judge Bench led by Chief Justice Dipak Misra hearing a plea to strike down Section 377 that criminalises gay sex even if it is between consenting adults, was reacting to arguments that homosexual behaviour leads to spread of HIV.

“The cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?” Justice Chandrachud asked lawyers supporting Section 377 IPC.

Also Read Tracing the birth of the LGBTQ rights movement

“So heterosexual people do not transmit HIV?” Justice Indu Malhotra asked senior advocate K. Radhakrishnan, for Trust of God Ministries that is against striking down Section 377 IPC.

“The cause of sexually transmitted diseases is not sexual intercourse, but unprotected sexual intercourse. A village woman may get the disease from her husband, who is a migrant worker. This way would you now want to make sexual intercourse itself a crime?” Justice Chandrachud asked lawyers supporting Section 377.

‘Prohibition won’t help’

Justice Rohinton Nariman, taking a cue from Justice Chandrachud’s observations, said prohibitions have never resolved social issues. “If you licence prostitution, you control it. If you kick it under the carpet owing to some Victorian-era morality, it will only lead to health concerns. All prohibition is wrong,” said Justice Nariman.

Advocate Manoj George, for an alliance of churches, said “carnal desire,” with or without consent, was an offence under Section 377. It was against the order of nature.

“So what is the order of nature for you? Is it sex only for procreation?” Justice Chandrachud asked.

“Love you may, so long as there is no physical manifestation of your love,” said Justice Chandrachud about the attitude of the pro-Section 377 side to the LGBTQ community.

Fundamental right

Giving a strong indication that the Bench will declare that Section 377 violates the right under Article 21 of the LGBTQ community to sexuality, sexual orientation and choice of sexual partner, Justice Nariman said the whole objective of Fundamental Rights is to empower the court to strike down laws like Section 377. The court was not dependent on public views like a majoritarian government in power, whose views were swayed by its vote bank. “We don’t wait for majoritarian governments to strike down the offending law. They may enact, repeal or do whatever they want, but the moment we find that a law violates fundamental rights, we strike it down.”

In this case, the NDA government chose to keep mum about its opinions on the legality of Section 377.

The Constitution Bench reserved its judgment on the petitions to free private homosexual acts between adults from criminality.