Section 377 Arguments Summary Day 1: July 10, 2018.
Today, at 11.30 p.m., the five judge bench comprising Chief Justice Dipak Misra, Justice Ajay Manikrao Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice Rohinton Nariman started hearing the challenge to the constitutionality of Section 377 of the Indian Penal Code, 1860. Given the public mobilization against Section 377 especially in the last decade, it will not be an exaggeration to call it a historical moment in India’s constitutional history. Coming close on the heels of Puttaswamy, it has naturally raised expectations amongst the LGBT community.
The hearings began on a slightly heated note when the Additional Solicitor General Tushar Mehta pressed for hearing the curative petitions filed earlier. There was also a mention made by another lawyer who had appeared for one of the petitioners in the curative petition. Chief Justice Misra said that all counsels will be heard and that the curative petitions had a very limited scope whereas these fresh petitins had no limitations.
Mr. Mukul Rohtagi, appearing for Navtej Johar and others, opened the arguments for the day by highlighting that Section 377 criminalizes protection of rights under Article 21. He then referred that this form of criminalizing affects the rights of the LGBT community in all aspects of their lives including employment and their perception in society by others. He compared their situation as being analogous to “unconvicted felons”. He argued that he was not just arguing that section 377 must go, but was also asking for a declaration that the petitioners’ rights are protected under Article 21.
He referred that societal morality which discriminates against the LGBT community and noted that this has no place in India’s constitutional structure. He stressed on the need for “constitutionality morality” which overrides any considerations of societal morality. To buttress his arguments, he referred to some landmark judgments in the recent past, namely Hadiya, Shakti Vahini, Common Cause and Independent Thought. He also cited cited judgments from the United States and United Kingdom. At this point, Justice Nariman recommended that reference be also made to the judgments by the European Court of Human Rights.
He first started by stating that in the Privacy judgement, 6 of the judges had held that the decision in Koushal was wrong, and hence this was an opinion of 9 judges which would override the Koushal decision.
His next arguments were on sexual orientation and its difference from the question of gender. He categorically stated that his arguments will be limited to sexual orientation. Justice Chandrachud observed that sexual orientation and gender are connected, that they are fluid identities and cannot be compartmentalized.
Regarding the ‘order of nature’, Justice Nariman observed that to the LGBT community, their sexual orientation is the ‘order of nature’. He argued that being gay was not a matter of choice. It was innate and inborn and even was genetic.
Mr. Rohtagi further argued that the Section 377 discriminates against a particular class of people. Justice Chandrachud differed on this and said Section 377 can apply to anal sex between a man and a woman. Therefore Article 14 will not apply. Mr. Rohtagi countered that the impact of Section 377 is largely on gay men. Accordingly, if the objective is discriminatory, reasonableness is irrelevant. He cited relevant cases to support his arguments.
Justice Nariman then said that there were two questions to be answered in respect to section 377: what is the order of nature; to sexual minorities, whether it was in the order of nature.
Mr. Rohtagi joked that since Puttaswamy had already said that Suresh Koushal was wrongly decided, his task would be quite easy. Justice Misra promptly requested him to do the easy job.
When Mr. Rohtagi requested the bench to consider questions live in relationships and other matters relating to property and inheritance to which Chief Justice Misra replied that those questions were not before the Court. The Court would only focus on the constitutionality of Section 377 and therefater when other questions come to court, they can be decided.
Mr. Rohatgi argued that what was ‘in the order of nature’ under section 377 has to be read as being relative to the times. A law may become invalid due to the passage of time. He also referred to other decisions including the Independent Thought v, Union of India where section 375 exception 2 was read down.
He then argued that Section 377 would also come into play between a man and a woman where sexual intercourse was beyond penile-vaginal sex.
He then read out parts of the Naz Foundation judgement of the Delhi High Court and said that the Union of India had not filed any appeal against it and had in fact filed a Review against the Supreme Court judgement in Koushal and therefore the stand of the Government was clear.
The Court had a laugh and CJI Misra remarked that we could say that the government consented to the Naz Foundation Judgement.
Mr. Rohatgi proceeded to refer to the privacy judgements, and the Yogyakarta principles in NALSA. Here Justice Chandrachud remarked that the Yogyakarta Principles suggest that there is an overlap between sexual orientation and gender identity and that any declaratin would not be limited to sexual orientation alone but would also be on the question of gender.
Mr. Rohatgi then proceeded to read the judgement of Lawrence v. Texas.
The Court then raised for lunch.
After lunch, Mr. Rohatgi did not come back as he was unwell. At this point, Mr. Arvind Datar took over.
Mr. Datar submitted his arguments, and started with a historical coverage of section 377. He mentioned how it was part of the eccelesiastical courts and that the offence of buggery was used to confiscate property. Buggery in England was also punishable by death. The IPC was the first codification of criminal law in India.
He referred to the remarks made in Koushal that Section 377 reflects the will of Parliament, but that this was wrong as this was a pre-constitutional law.
He referred to an article by Douglas Sanders and also the amicus brief in Lawrence v. Texas to trace the history of the systematic persecution of the gay community and also that it described sexual orientation as a normal variation of human sexuality.
To this Justice Indu Malhotra remarked that this was not only in humans but also in animals.
When Mr. Datar referred to the Article 372 on the presumption of constitutionality of pre-constitutional laws, CJI Misra remarked that a presumption does not make the law constitutional.
Mr. Datar went on to argue that under Article 13 (2), Section 377 would not stand if it was enacted today.
Justice Nariman questioned that merely because the President had not issued any notification, it would not mean that the presumption was satisfied.
Mr. Datar went on to read from the Koushal judgement to state that its finding that section 377 criminalised only acts and not people was wrong. Section 377 criminalised a class of people.
To this, J. Chandrachud said that 377 would also apply to a man and woman having anal sex. CJI Misra said that the acts would apply to homosexuals and also heterosexuals, the only question is what is the order of nature and what is natural orientation and cultivated orientation. Justice Nariman remarked that the IPC in section 375 states ‘sexual intercoruse’ but in section 377 states ‘carnal intercourse’.
Mr. Datar agreed with this and remarked that if any act is voluntary and part of an innate and natural conduct how can it be a crime. Same sex can never be against the order of nature.
He went on to argue on Article 14 and said that section 377 results in discrimination and denial of equality. In NALSA if gender identity is protected then even sexual orientation rights should be protected.
He then moved on to right to life and privacy arguments. He argued that the right to choice of a partner was part of the right to privacy in Puttuswamy. Justice Chandrachud remarked that in the Hadiya case they had said that the right to partner is a right, and this would include same sex partners.
He read many parts of the Privacy judgement and argued that sexual orientation is an essential part of one’s identity and that after Puttuswamy, section 377 cannot stand.
He went on to read from some of the European judgements – Fitzpatrick case, Dudgeon’s case, Norris case and the Wolfson Committee report. In the privacy judgement he read the relevant paragraphs and said that decisional privacy would be the ability to make decisions on intimate relations and that unless the State can show compelling public interest, Section 377 has to be struck down.
With this he finished his arguments.
Thereafter Saurabh Kripal argued and started reading Lawrence v. Texas from where Mr. Rohatgi had left. The court session ended soon thereafter.
(This report has been prepared by Mr. Samya Chatterjee with the assistance of Ms. Jayna Kothari.)