Won't wait for majoritarian govt to strike down law: SC

The Supreme Court on Tuesday said the courts cannot wait for a "majoritarian government" to decide on striking down a law if it violates fundamental rights.

A five-judge Constitution bench, presided over by Chief Justice Dipak Misra, gave positive indications to a group of citizens who challenged the validity of penal provision criminalising homosexual sex among the consenting adults.

Reserving its judgement on a batch of writ petitions, the court also clarified that it may not strike down the law completely and would rather deal with it to the extent it related to consensual acts between two adults.

"If Section 377 of the IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent," the top court said.

"The whole object of fundamental right is to give power to courts to strike down a law, which majoritarian government, swung by votes, will not repeal. We will not wait for majoritarian government to repeal laws. If a law is unconstitutional, it is duty of the courts to strike it down," the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said, while wrapping the four-day long hearing in the matter.

The court made its observations while throwing a volley of questions to the counsel, representing the Apostolic Alliance of Churches and the Utkal Christian Association, who contended that it fell under the domain of the legislature to decide whether to enact or amend the existing law.

He said decriminalising Section 377 would have impacts on many other statutes which deal with matrimonial and civil rights of men and women.

The counsel also contended that penal provision did not deal with consent as unnatural sexual activity was against the "order of nature".

"What is the 'order of nature'? Is it only 'order of nature' if sex is meant for procreation? Every sexual act which does not lead to procreation is against the order of nature for you," the bench said.

Senior advocate K Radhakrishnan, appearing for NGO Trust God Ministries, claimed that homosexuality promoted AIDS. The court, however, said the public acceptance that people lived in gay relationships will help meet health concerns.

"If you license prostitution, you control it. If you shove it under the carpet, owing to some Victorian-era morality, it will only lead to health concerns. All prohibition is wrong," the bench said.