A Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya is hearing a batch of appeals against the Delhi High Court judgment that decriminalised homosexual behaviour by keeping adult consensual acts out of the ambit of Section 377 IPC.
Naz Foundation, an NGO working among transgenders, had challenged the vires of Section 377 IPC on the ground that it was violative of the fundamental right to life of the community.
The Bench has been criticising the Union of India for not taking a positive stand on the issue. On Tuesday, the court again criticised the government for its casual approach to the issue. “The least that was expected was an affidavit by a Secretary. This is a very peculiar position. The Union of India says that it will stay neutral in a case where the vires of a law are under challenge. The government has to make up its mind,” Justice Singhvi said.
The Bench on Tuesday heard arguments from senior counsel Ashok Desai, appearing for noted film Director Shyam Benegal, justifying the High Court judgment.
The government, on earlier occasion, had told the court that homosexuality was “immoral” and the High Court order legalising it was not in tune with the country’s “cultural practices.” Later the Home Ministry said the government did not have a position on “homosexuality” and it was only assisting the court.
Mr. Desai contended that the sweep of Section 377 was so wide that it would even include heterosexual sex as well, implying that the law had the potential of being misused to harass non-gays too.
Justice Singhvi remarked as to why the legislature had no time in 60 years to review the law at all. “How long does the country have to wait for them to have time,” he wondered. “We are sorry that the UOI [Union of India] has dealt with this very casually. The minimum that was required was an affidavit by a Secretary- level officer. We shall deal with this in our judgement.”
When Justice Mukhopadhyaya observed that the life term that Section 377 earlier entailed was reduced in 1955, indicating some sort of review of the law. Mr. Desai said laws such as the Companies Act were pending for over 10 years. Other laws such as the Industrial Disputes Act (amendment) were not given effect to for years.
The Bench, while seeking the assistance of the Attorney General, adjourned the proceedings to Wednesday.