“So heterosexual people do not transmit HIV?” Justice Indu Malhotra asked K. Radhakrishnan, senior advocate for the Trust of God Ministries that is against striking down Section 377 IPC.

Justice Rohinton Nariman, taking a cue from Justice Chandrachud’s observations, said prohibitions have never resolved social issues. “If you license prostitution, you control it. If you kick it under the carpet owing to some Victorian-era morality, it will only lead to health concerns. All prohibition is wrong,” said Justice Nariman.

Advocate Manoj George, for an alliance of churches, said “carnal desire”, with or without consent, was an offence under Section 377. It was against the order of nature.

“So what is the order of nature for you? Is it sex only for procreation?” Justice Chandrachud asked.

Giving a strong indication that the Bench would declare that Section 377 violates the right under Article 21 of the LGBTQ community to sexuality, sexual orientation and choice of sexual partner, Justice Nariman said the whole objective of fundamental rights is to empower the court to strike down laws like Section 377.

Fundamental right

The court was not dependent on public views like a majoritarian government in power, whose views were swayed by its vote bank.

“We don’t wait for majoritarian governments to strike down the offending law. They may enact, repeal or do whatever they want, but the moment we find that a law violates fundamental rights, we strike it down,” he said.

In this case, the NDA government chose to keep silent about its opinion on the legality of Section 377.

The Constitution Bench reserved its judgment on the petitions to free private homosexual acts between adults from criminality.

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