The 2nd day of hearing came to an end with the judges GS Sanghvi and SJ Mukhopadhay, (who are hearing 16 petitions brought against the Delhi High Court ruling which struck down the colonial law that criminalized homosexuality) discussing the “order of nature” in Section 377 of the Indian Penal Code.
While discussing they brought up the sculptures in Khajuraho temple which depicts all sorts of sexual acts from same sex to, heterosex to beastiality. They judges wanted to bring to notice, before the British made the IPC in 1860, homosexuality was not fowned upon in Indian society. Both judges indicated, that homosexuality should be viewed in ralation to the changing scociety.
“Many things, which were earlier unacceptable, have become acceptable with passage of time,” the bench told senior counsel Amarendra Sharan, who is representing the Delhi Commission for Protection of Child Rights.
To the above statement, Mr. Sharan replied that social issues cannot be decided on the basis on sculptures.
The judges bench answered to the objection in a very rational way. “It is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse,” was their counter argument.
The question that was raised by the bench on wednesday ,” Who is the expert to define the term order of nature?” was answered by them the next day with the following staement ,” These things should be seen in the light of changing times where phenomena of live-in relationship, single parents and artificial fertilisation have become normal.”
They further elaborated with “Take the recent phenomena of live-in relationship, single parents and surrogacy. There is a case where a man is unmarried but wants to be a father and engage a surrogate mother. Thirty-forty years ago it was against the order of nature but now artificial fertilisation is a thriving business.”
A very sound argument… and rational. A scotiety which essentially had no qualms about homosexuality before the British Rule cannot argue about its societal damage it might have by decriminalizing homosexuality. When the same British governmant in their own country has legalized homosexuality and accepts civil unions.