Representative photo

NEW DELHI: Reserving its verdict on pleas seeking decriminalisation of Section 377 of the IPC to protect sexual orientation of LGBTs, the Supreme Court refused to leave the matter to Parliament and asserted its right on Tuesday to overturn and change laws enacted by a majority government if they were violative of fundamental rights.

A bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra refused to entertain concerted requests from various organisations to leave the decision to Parliament given the wide ramification of legalisation of gay sex on matrimonial and civil laws.

"The moment there is a finding that a provision violates the fundamental rights of citizens, this court has the power to strike it down, irrespective of the majoritarian government’s power to repeal, amend or enact law. It is for us to strike it down the moment something violates fundamental rights," the bench said.

It brushed aside as "far-fetched" arguments that decriminalisation of Section 377 could legalise incest, group sex and sodomy.

Appearing for two Christian organisations, advocate Manoj George attempted to stall the SC juggernaut rolling in favour of legalising gay sex and succeeded in extending the 90-minute limit which the court had fixed for those opposing the pleas to 180 minutes.

He said in the Suresh Koushal judgment of December 2013, the SC had reversed a Delhi HC order decriminalising Section 377 but had said it was for Parliament to make suitable amendments taking into account the recommendations of the Law Commission.

He cited a recent decision of the apex court on a petition by women lawyers seeking medical castration of child sex abusers in which the court had left it to Parliament to provide for higher punishment. "The court cannot recast or correct a statute even if it is assumed to be defective," he said.

George said there were more than 70 different types of sexual orientations and if the court ruled that there could be no discrimination under Article 14 of the Constitution on the grounds of sex or sexual orientation, it would create a difficulty as it was impossible to have one definition of sexual orientation when the Constitution itself was silent on the issue.

The court admitted to constitutional silence on sexual orientation but said it would scrutinise only the constitutional validity of Section 377, especially when it criminalises LGBT community members’ consensual sexual relations in private. Senior advocates K Radhakrishnan and Soumya Chakraborty, with advocate Harshvir Pratap Singh, pointed out that Section 377 dealt with intercourse "against the order of nature", it did not take into account non-penetrative sex, typical to lesbian and other same-sex communities.

Justice Chandrachud said for a sexual relationship, penetration was not always essential, as it encompassed much more. "Feelings for each other are not orientation and attraction towards another is not sexual orientation," he said. CJI Misra joined in and said, "These words are not defined. It can be a platonic relationship, which, according to John Donne, is metaphysical. It could also be romantic, which is an adventure. It’s like a balloon which goes up and up and never comes down."

However, the SC was firm that no community, howsoever minuscule it might be compared to the majority population, could be deprived of their sexual rights and expression of sexual orientation. It said sex as per the order of nature was conceived as intercourse between man and woman for the purpose of procreation. "It could have come from the Bible or any other religious text. But the SC has already recognised unique sexual orientation when it created the ‘third gender’ apart from ‘male’ and ‘female’ conventionally used till date," it said.

The opponents of decriminalisation argued that there was no safeguard against sexual exploitation which would take place in the name of legalisation of gay sex. Chakraborty asked what would be the safeguard against a homosexual man forcing anal intercourse on a woman, or for that matter group sex or kinky sex. Radhakrishnan said legalising gay sex would mean recognising the abuse of sexual organs for purposes other than the role nature had assigned to them.

