By IANS,
New Delhi : The Delhi Commission for Protection of Child Rights(DCPCR) Wednesday told the Supreme Court that the right to privacy does not confer any right on consenting adults to commit illegal acts in private.
Appearing for the panel, senior counsel Amarendra Saran told a bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya that “right to privacy does not confer any immunity to crimes committed by consenting adults in private”.
Saran’s contention came during the hearing on a batch of petitions challenging the Delhi High Court’s July 2, 2009 verdict holding that Indian Penal Code’s Section 377, which criminalises gay sex among consenting adults, was a violation of fundamental rights.
Arguing that the reasoning and the premises on which high court judgment was based were “clearly erroneous, against the binding decision of the apes court and unsustainable in the eyes of the law”, Saran said that there was a vast difference between Indian culture and that of the Western countries.
The DCPCR, Saran told the court, has a “legal duty and the responsibility to protect the best interests of the child and also to provide them an atmosphere where the freedom and the dignity of all children is safe and the child may bloom without fear of abuse, exploitation and deprivation”.
The court was told that the high court was moved by the Naz Foundation and others contending that Section 377 was being resorted to target homosexuals as a class and thus it was a violation of Article 14, 15 and 21 of the Constitution as it infringes on the right to privacy and discriminates on the basis of sexual orientation.
As Saran assailed the high court verdict, the court asked him if there was any scientific study which links incidence of HIV with homosexuality.
At this, Additional Solicitor General P.P. Malhotra cited literature by the World Health Organisation pointing to nexus between homosexuality and the incidence of HIV.
The court told Saran that for an act to become an offence under Section 377 IPC, there had to three ingredients that included the offence, the complainant and an accused.
When Saran said that under the law, a complaint could be filed by any one, the court pointed out that then the act punishable under 377 IPC will not remain private.
The court asked Saran to broaden the canvas of this plea to include other obscene acts and not just confine it to Section 377 IPC.
Section 377 IPC says that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished”.