Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. continue to unravel the path to justice on Section 377 IPC, 1860 on the third day of the proceedings.
Senior Advocate Shyam Divan resumed with his arguments representing ‘Voices against 377’ and started with the explanation towards the positive dimension of Article 14 of the Constitution of India. By placing reliance on Nariman, J. judgment on Triple Talaq, Shayara Bano v. Union of India; (2017) 9 SCC 1 which states “equality before the law” in Article 14 derived from the UK while “equal protection of the law” is from the 14th amendment of US.
‘Equal protection of the law’ connotes positive content of Article 14 whereas ‘Equality before the law’ is the negative aspect.
Shyam Divan also cited Lawrence v. Texas, 539 U.S. 558 (2003) – “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons”.
He also backed ‘Right to Intimacy’ quoting from South African Constitutional Court that the right to privacy covers right to maintain intimate relations unaffected by the law.
“Supreme Court should not have re-criminalized Section 377 (after Delhi HC struck it down) because of the tremendous adverse impact it has”: Senior Advocate Shyam Divan
Indu Malhotra J. making her stance clear on Section 377 said that ‘Homosexuals face a lot of pressure from parents, society, etc. That is why they turn into bisexuals; it carries huge social ramifications’.
‘It is not just human beings who alone indulge in homosexual acts, many animals also show homosexual behaviour; it is not an aberration but a variation’.
‘This community of LGBT feels inhibited to go for medical aid due to the prejudices against them.’
CJ Dipak Misra observed ‘LGBT themselves feel discriminated because of they are treated differently. They feel stigma because of criminality attached to it.’
Chandrachud, J. ‘We have created a societal environment that creates a discrimination of these individuals. If Section 377 goes let’s hope such societal stigmas change.’
Senior Advocate C U Singh backed his arguments by stating that having faced criminalisation for over 160 years, it is a huge step to strike it down.
‘But whenever there has been historical deep-rooted discrimination, then the State has resorted to affirmative action.’
Further, while concluding his arguments, he stated that “They (LGBT) continue to suffer a disproportionate mental problem because of the stigma attached to it.”
Senior Advocate Ashok Desai began by stating that existence of LGBT community is a part of our culture hence not alien to Indian culture. While talking about the ‘stigma’ he cited an article written by late Leila Seth, J. whose son is a homosexual for whom she said that my son is a criminal as per law after the Delhi HC verdict was reversed by the Supreme Court.
‘Homosexuality is existing in society and civilisation has accepted this.’
‘Same-sex is not selfish. They don’t want to produce children.’
He also argued that the Court needs to recognise the concept of fraternity as the LGBT community is humiliated terribly.
Mr. K. Venugopal submitted that fear of law is used to harass LGBT community. He also states that Section 377 is used as an excuse to impinge on freedom of expression.
“Section 377 offers a legal basis to suppress alternate sexuality.”
While submitting his arguments, he also stated that Lord Macaulay while introducing this provision said he does not even want to discuss this provision as according to him it was revolting and odious. On concluding his arguments he cited Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court judgment which made same-sex marriage in USA legal.
ASG Tushar Mehta appearing for Union of India states that, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 cannot be interpreted to mean that Section 377 should exclude bestiality.
Mehta urged the Court to stick to the constitutionality of Section 377.
CJ Dipak Misra: ‘Court does not follow majoritarian morality but constitutional morality.’
“We don’t decide Constitutional issues by referendum”, CJ Dipak Misra to another counsel who tried to make arguments based on “popular opinion”.
“Look at some liberal Constitutions. We will point out some countries on the map where you need to look at”. Chandrachud, J. to a counsel arguing in support of Section 377 IPC.
‘No senior to hold a brief for my side, maybe because of the issue involved’ said George who was appearing for two Christian associations supporting Section 377. “There was a U-turn by the government which causes serious concerns for the public at large“, stated Manoj George appearing for one of the respondents.
Chandrachud, J. stated that it’s not a U-turn, pointing that the Delhi HC judgment wasn’t challenged.
An advocate submitted that private bill on Section 377 got defeated. Court said it doesn’t matter, Section377 can still be assailed on the parameters of Part III.
The Constitution Bench would continue with the arguments on 17-07-2018. [Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016, order dated 12-07-2018]