Cannot wait for majoritarian governments to strike down Section 377: Supreme Court

The Supreme Court is hearing multiple petitions to quash Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality.

The matter is being heard by a five-judge constitutional bench headed by Chief Justice of India Dipak Misra and comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Advocate Manoj George, appearing for two Christian organisations, told the court on Tuesday that any amendments that need to be made to Section 377 should be left to Parliament.

To this, Justice Nariman said that the moment the bench is convinced that the section violates fundamental rights, the apex court will strike it down and not leave it to the legislature to do so.

"Can't wait for majoritarian governments to strike down Section 377 if it is against fundamental rights," he said.

George tried to argue that gay relationships will lead to increase in HIV and other sexually-transmitted diseases, to which Justice Chandrachud said that suppressing things only makes matters worse.

Justice Nariman buttressed the issue by citing the example of prostitution. "Licensing it would help address health concerns. Problem is you brush it under the carpet. The issue is prohibition in all forms," he was quoted by an Indian Express reporter as saying.

During the court proceedings on Tuesday, Justice Nariman and Justice Chandrachud had asked the court to define the "order of the nature" and the word "carnal".

Justice Nariman noted that the definition of 'sex' has already been expanded to include transgender. "We have already expanded the scope of the meaning of sex. You need to respect the natural process of law. If any sex is against the order of nature, it doesn't lead to procreation," he said.

Justice Nariman also pointed out how Alan Turing, the popular English Mathematician and computer scientist, committed suicide after he was chemically castrated.

His statements came in response to Advocate Manoj George, who told the court that sexual orientation by itself has not been in the Constitution or the IPC and that the courts shouldn't add or delete words that are not expressly provided.

George presented in the apex court on Tuesday that the idea that people are born with a sexual orientation is not supported by scientific evidence.

The counsel for the respondents even argued that scrapping Section 377 will be detrimental for the institution of marriage, with the counsel of Suresh Koushal saying it will lead to more sex workers cropping up.

They also asked the court if incest between two consenting adults will be condoned in case Section 377 is quashed.

The next hearing on the matter has been scheduled for July 20.