Section 377 Arguments Summary Day 3: July 12, 2018

The post lunch session resumed with Mr. Venugopal stressing the impact of Section 377 on the identity of the LGBT community.

He argued that under the guise of conduct, Section 377 targets the identity of the LGBT community. This is a cause behind extortion and harassment by the police of homosexuals. It violates their ability to express themselves openly under Article 19(1)(a) of the Indian Constitution. The harsh exercise of state power has a “chilling effect on free speech”. He requested  the court to be guided by concerns of constitutional morality and not public morality.

Mr. Venugopal illustrated how artistic expression is suppressed by Section 377 by denial of tax exemption to a film on homosexuals in Gujarat. ASG Tushar Mehta immediately responded that the case is pending in the Gujarat High Court. Mr. Venugopal countered that it does not change the fact that expression has been stifled by Section 377.

Mr. Venugopal argued that Section 377 discourages people from access to public streets and freedom to organize gay parades. This affects their conscience to support people from the LGBT community. He requested the court to consider that conscience is not limited to matters of religion.

After Mr. Venugopal ended his arguments, one of the intervenors from the respondents side stood up and lamented the lack of any senior counsel to argue the case for respondents. He argued that Section 377 prohibits carnal intercourse and not sexual intercourse. He specifically highlighted that Section 377 doesn’t prohibit enjoying personal relationships.

He further argued that the Government had taken a U-turn by not contesting the judgment of the Supreme Court in 2013. Justice Khanwilkar protested that the there was no U-turn and subsequent developments in law, especially Puttaswamy, had to be considered.

The counsel then argued that three private bills have been rejected by the Parliament. Chief Justice Dipak Misra argued that is not an issue since even in the case of  passive euthanasia, the court was not concerned with parliamentary approval.

He then proceeded to declare that he would like to argue extensively for respondents. Accordingly, he requested the court to give him time as provided to petitioners. He joked that in the season of the FIFA World Cup, only half-time is over. Justice Misra did not agree and requested him to argue on fundamental rights.

Justice Misra eventually acquiesced to one and a half hours in the next hearing. The hearings will be heard on July 17, 2018 at 11.30 a.m.

(This report has been prepared by Mr. Samya Chatterjee.)