SC & homosexuality
The Supreme Court on Wednesday said its final decision on the Delhi HC judgment decriminalizing a sexual act in private between consenting adults could have a far reaching impact on several sexual offences listed under IPC. The observation was made by an SC bench, requesting the counsel for both parties to keep in mind the evolving social ethos, as the key words in the HC judgment—“consenting adults committing a sexual act in private” could have a bearing on several other sexual offences enumerated under the IPC. “Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” a Supreme Court bench of Justices G S Singhvi and S J Mukhopadhaya told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of the Delhi Commission for Protection of Child Rights (DCPCR). The SC bench was possibly hinting at offences such as adultery and obscenity in public, often misused by police to harass couples in parks. Section 497 defines adultery. According to it, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse, not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” In this case, the consent of the woman is immaterial and the sexual act still would constitute an offence if the consent of her husband was not taken. Advocate Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the lesbian, gay, bisexual, transgender group’s right to equality and the constitutional guarantee prohibiting discrimination on the basis of sexual orientation of such persons. He argued that right to privacy did not confer right to commit an act in private which was illegal. He said Section 377 did not suffer from class bias and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.