Who Argued What In Challenge Against Section 377

The Supreme Court of India will rule today on the constitutional validity of the Section 377 of the Indian Penal Code that criminalises homosexuality between consenting adults.

A five-judge constitution bench headed by Chief Justice of India Dipak Misra heard petitions filed against the colonial-era law by, among others, Keshav Suri, the executive director of The Lalit Suri Hospitality Group, and the Naz Foundation.

They filed a review petition against the Supreme Court’s 2013 ruling that re-criminalised homosexuality, overturning Delhi High Court’s 2009 verdict that had held Section 377 “illegal”. The hearing this time saw minimal opposition from the government, which left it to the wisdom of the top court. The only challenge came from three Christian groups who opposed it on theological grounds.

Apart from Chief Justice Misra, the bench comprises Justice Rohinton Nariman, Justice DY Chandrachud, Justice AM Khanwilkar and Justice Indu Malhotra. Here are some of the arguments during the hearing:

Petitioners

Former Attorney General of India and Senior Advocate Mukul Rohatgi, who started arguing for petitioners, said the 2013 Supreme Court judgment that upheld Section 377 was bad in law and has to be struck down. Rohatgi said sexual orientation is not a matter of choice but is innate, and something that is natural cannot be criminalised.

Justice Malhotra, during the arguments, observed that homosexual behaviour is found not just in humans, but animals as well.

Senior Advocate Arvind Datar said that central government had not challenged the 2009 Delhi High Court decision that struck down Section 377. He also cited the recent nine-judge verdict that held privacy to be a fundamental right. In that judgment, he said, the apex court noted that “right to privacy includes decisional privacy which is an ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations”.

Continuing arguments for petitioners, Advocate Menaka Guruswamy called Section 377 “arbitrary” and one that is based on ideas of Victorian morality. Citing Article 15 that bars discrimination on the basis of sex, she argued Section 377 discriminates on basis of sex of a person’s sexual partner; and, hence, hits the bar placed by Article 15, making it unconstitutional.

Guruswamy also cited the recent case of Hadiya, the Kerala medical student who had embraced Islam and wanted to marry a Muslim man. The top court, in that case, had held that the right to choose a partner a fundamental right. Section 377 criminalises choosing a same-sex partner and hence violates the principle enunciated in the Hadiya case, she argued.

Senior Advocate Anand Grover also highlighted arbitrary application of Section 377 due to its poorly defined scope. He cited the example of a man who was held for distributing condoms to gay men and didn’t find a lawyer to represent him.

The petitioners also argued on the impact on the mental health of the members of the LGBTQ community. Justice Chandrachud agreed that society has developed in a manner which has led to disdain for the community, impacting their mental health.

Government

The central government took a neutral stance, leaving the decision to the “wisdom of the court” as long as it applies to “consensual acts of adults in private”.

If the case also involves other rights and issues of the LGBTQ community such as marriage, adoption, and inheritance, the government would like to contest on those points, Additional Solicitor General Tushar Mehta said while filing the government’s affidavit in the court. Such rights, if granted, will have consequences which are neither contemplated in the reference nor required to be answered by the Supreme Court, the affidavit said.

On the rights of the LGBTQ community in areas such as jobs, Chief Justice Misra observed that once Section 377 is no longer a bar on them to express their sexual orientation, the discrimination they faced would vanish as well.

Challenge

The opposition to the petitions was led by Christian groups Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries. Advocate Manoj George represented the first two and Senior Advocate KS Radhakrishnan the third.

They said the central government has taken a U-turn on the issue, and argued that Section 377 is not based on the idea of Victorian morality and that this issue must be left to the wisdom of Parliament.

The organisations argued that the idea of a person being born with a particular sexual orientation is wrong and is not supported by science.

Trust God Ministries argued that Section 377 acts as a means to prevent HIV/AIDS and if the section is struck down, it will result in rapid spread of AIDS. At one point during the hearing, George was told by the bench that some of his arguments seem to be sourced from hate websites.