Court's duty to strike down law if it violates fundamental right: SC

Raising hopes for those seeking decriminalisation of consensual gay sex, the Supreme Court today asserted that courts cannot wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights.

Hearing a clutch of pleas challenging the validity of section 377 of the IPC, a five-judge Constitution bench headed by Chief Justice Dipak Misra, however, made clear that it may not strike down the law completely and deal with it to the extent it relates 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 while allaying apprehensions of those opposed to the decriminalisation of the penal provision.

"We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights," the bench, which also comprised justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said while reserving the verdict on the petitions seeking decriminalisation of consensual gay sex.

The observations came when lawyer Shyam George, appearing for Apostolic Alliance of Churches and Utkal Christian Association, said that it was not the job of the court and rather it fell under the domain of the legislature to decide whether to enact, amend the existing law as the decriminalising it would have the impacts on many other statutes which deal with matrimonial and civil rights of men and women.

Quoting from a US verdict in the case of the West Virginia Board of Education versus Burnette, Justice Nariman said, "The moment something is brought to our mind that there was violation of fundamental rights, it is our duty to strike that down."