The apex court termed the prohibitions on acts like prostitution and homosexual relationships as one of the causes for spread of STDs and said, "If you licence prostitution, you control it. If you shove it under the carpet, owing to some Victorian-era morality, it will only lead to health concerns".
A five judge Constitution bench headed by Chief Justice Dipak Misra, which today reserved its verdict on pleas seeking decriminalisation of consensual gay sex, was not in agreement with the submissions of the lawyers favouring retention of section 377 in the IPC, that the homosexual relationships have led to spread of AIDS.
"The cause of sexually transmitted diseases is not sexual intercourse. But unprotected sexual intercourse. A village woman may get the disease from a husband who is a migrant worker," the bench said.
"This way you would want to make sexual intercourse itself a crime," the bench, also comprising also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, asked.
If prostitution is licensed then all health parameters and concerns will be met, the court said adding that when it is made illegal then such health related issues arise.
Senior advocate K Radhakrishnan, appearing for NGO 'Trust God Ministries' and lawyer Shyam George, representing some Christian organisations, submitted that the homosexuals spread STDs like HIV and the huge public funds are being spent to combat it.
"So heterosexuals do not transmit sexually transmitted diseases," the bench wondered.
Public acceptance that people live in gay relationships will help meet health concerns and homosexuals who live in denial with no access to medical care are more in danger to contract or spread HIV," the bench said.
At the outset, George said the courts should not add or delete words to the statute that are not expressly provided and it was the job of the legislature.
"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 said and made clear that it may strike down a law if fundamental rights are infringed.
George said that the section 377 of the IPC does not consider the aspect of consent and it only deals with the unnatural sexual acts which is against the "order of the nature".
He also said that the term sexual orientation cannot be read interchangeably with the term 'sex' used in Article 14 and 15 of the Constitution, which deal with right to equality of the citizens as there were 32-50 types of sexual orientations.
"Sexual orientation is of abstract nature and such an abstract concept cannot be read into Article 15 and moreover, the term sexual orientation has not been defined either in the Constitution or in any other statute," he said.
The bench said its NALSA verdict recognised trans-gender as a gender besides male and female.
It then questioned the authenticity of the materials provided by the lawyer in the issue of sexual orientation and said that there were several "fake and hate" websites and one should be careful in using such contents.
It has been argued that the right to intimacy was as valid as the right to marriage, George said, adding that the European Human Rights court has held that "the right to marry is not a conventional right".
"If such unnatural offence as under section 377 is allowed with consent then it would have cascading effect on many other legislations," he said.
The provision could be read as holding bestiality as unnatural offence and sexual act with persons under 18 years of age as an offence, the bench said.
Senior lawyer K Radhakrishnan opposed the pleas seeking to set aside section 377 and said that what was criminalised was the unnatural act and the provision was gender neutral.
The right to privacy cannot be allowed to be an "unruly horse" and the sexual organs are being abused by indulging in unnatural sexual acts which were not assigned by the nature, he said.
The court will have to examine the extent to which the right to privacy may be extended as the persons will need to uphold the public morality while enjoying the privacy rights, the lawyer said.
Lawyer H P Sharma, appearing for an intervenor, opposed the plea saying that repealing the provision would adversely affect the institution of marriage.
There is no law to save the marriage if a husband wants to indulge in homosexual acts, he said, adding that the problem of homosexuality would affect Army and students living in hostels.
The court reserved its verdict after lawyers concluded their arguments in the case.