Criminal act can't be decriminalised just because participants are willing: apostolic churches

The All-India Muslim Personal Law Board (AIMPLB) and the Apostolic Churches Alliance have strongly opposed the Delhi High Court's judgment decriminalising homosexuality between two consenting adults.

At a hearing of a batch of appeals in the Supreme Court on Wednesday, AIMPLB counsel Hufeza Ahmadi said privacy by itself was not a fundamental right, but only a penumbra right; and only certain facets of privacy would fall within the ambit of Article 19 (1) (a) or 21 of the Constitution.

Even if it was conceded that consensual sex between two adults in private came under the right to privacy and dignity, it could be restricted on the principles of morality, decency and health, Mr. Ahmadi told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya. In determining morality and decency, regard must be had for the existing social realities based, among other things, on beliefs of all major religious practices. The fact that 76 countries still treated homosexuality as a crime should also be taken into account.

Mr. Ahmadi pointed out that religious texts such as the Koran and the Bible, Arthasastra and Manusmriti condemned homosexuality. Social morality was a relevant factor to adjudge the validity of a law.

‘Centre failed in duty'

He said the state had a constitutional mandate to defend the statute, and by not opposing the High Court judgment, the Centre failed in its duty.

At this juncture, Justice Singhvi remarked: “It is a new phenomenon. The state says we are neutral. He [Additional Solicitor-General Mohan Jain] says he has instructions from the Attorney-General to assist the court.”

Mr. Ahmadi said the High Court had blindly applied western decisions without any basis to the country's jurisprudence. Section 377 of the Indian Penal Code did not suffer from the vice of being irrational, nor was it based on intelligible differentia.

Pointing out that consent was irrelevant, he said if criminalisation of a consensual act was a ground to hold a provision invalid, the same basis could be used to validate group sex or adult incest, which was otherwise regarded as an unnatural offence.

Appearing for the Apostolic Churches Alliance, senior counsel V. Giri said IPC 377 “does not by itself bring about a classification of individuals as homosexuals, heterosexuals and bisexuals. It only criminalises sexual acts which are against the order of nature.”

‘Wrong premise'

He said: “The High Court committed an error in proceeding on the premise that every person has a sexual orientation which is immutable and that the same is part of the right of privacy of the individual concerned, and therefore it also forms part of the right to life under Article 21. There is no material to conclude that unnatural sex, as defined in Section 377, is indulged in only by homosexuals, and that such persons have a natural disability to indulge in normal sexual relations.”

The High Court's finding that if two individuals indulged in unnatural sex with mutual consent the act could not be considered criminal was untenable. “A criminal act cannot be decriminalised only because the participants do so willingly. The reliance placed by the High Court on the Yogyakarta principles — which were formulated by self-appointed experts who support a liberal approach to sex among persons of the same gender — was clearly misconceived. The High Court has erred in declaring Section 377 unconstitutional; at best, it could have made a recommendation to the government to restructure Section 377 and nothing more.”

Senior counsel K. Radhakrishnan, appearing for Trust God Ministries, intervener, pleaded for retention of Section 377 without any dilution, arguing that it was absolutely necessary for protection of the constitutional concepts of equality, right to life and liberty, decency and dignity, public order and morality, and the country's integrity. “The rights to life, liberty and privacy are no licence to lead an illegal life, to indulge in immoral activities and to flout the cherished constitutional concepts and duties.”

The hunt for pleasure, he said, would result in young India being corrupted, and there would be a horrendous future in store for the country. Foreign practices could not be dumped in India. “It is as good as stirring up a hornet's nest.” Arguments will continue on Thursday.

The Bench has asked Mr. Mohan Jain to produce files on NGOs engaged in prevention of HIV/AIDS mentioned on the National AIDS Control Organisation's website.