Fri, 17 Feb 2012 02:33:22 GMT

Scope of penal provision on gay sex wide: SC



New Delhi, Feb 16 (IANS) The Supreme Court Thursday said the scope of Section 377 of the Indian Penal Code (IPC) was wide and could not be limited to holding homosexuality or sex between the same sex as being against the order of nature and criminal.

The apex court bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya said that the scope of Section 377 IPC was a very broad one.

Justice Singhvi said that society had changed a lot now and there were concepts of live-in relationship, single mother or even surrogate mothers.

The court said that 20-30 years back child through surrogacy would have been treated as unnatural or against the order of nature but today it was a business.

Posing a number of questions to Delhi Commission for Protection of Child Rights, the court asked if carnal intercourse not against the order of nature could be put within four corners and if homosexuality was outlawed.

The court said this when senior counsel Amarendra Saran, appearing for the commission, told the court that the essential ingredient of carnal intercourse, which was not against the order of nature, was the possibility of procreation.

Saran emphasised that "carnal intercourse" that did not lead to "procreation" was unnatural.

The court was hearing a batch of petitions challenging the Delhi High Court's July 2, 2009 verdict holding that Section 377, which criminalises gay sex among consenting adults, was a violation of fundamental rights.

Section 377 of the IPC which deals with unnatural offences reads: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished...."

As Saran referred to several judgments, including one of Lahore High Court in 1934, in support of his contention, the court asked him that instead of referring to Ajanta Ellora sculptures he should address the issue in context of modern day understanding of the issue.

"We are not in that time. We do not know how society reacted to it (then)," observed Justice Singhvi.

Justice Mukhopadhaya asked Saran if two people may have the same behaviour which may be abnormal but not unnatural.

He said that homosexuality was a very wide term. There may be some acts that may be against the order of nature, not all.

The case would next be heard Feb 22.

©Indo-Asian News Service

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