The case challenging the constitutionality of Section 377 of the Indian Penal Code commenced on Tuesday, 10 July, before a five-judge bench of the Supreme Court.
“The constitutional rights, in fact the basic human rights, of a section of society are involved,” argued senior advocate Mukul Rohatgi, representing one group of petitioners against Section 377. “Popular morality cannot prevail over constitutional morality just because this section may be a minority.”
Section 377 of the IPC criminalises all sexual acts which are “against the order of nature”, regardless of consent – which means that even consensual same-sex acts are a criminal offence. In 2013, the Supreme Court had upheld the validity of this provision in the infamous Koushal judgment, a decision which centred around the fact that the people affected by Section 377 constitute a “minuscule minority” of the population.
Rohatgi argued, therefore, that the apex court, as a protector of human rights, would need to go into the correctness of the Koushal decision and set it aside. The Constitution Bench of CJI Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra will be considering this as part of its assessment of the validity of Section 377, but will not be adjudicating on the broader rights of the LGBT+ community as some petitioners have requested.
What is the Government’s Stance?
One of the big question marks in this case has been over what stance the Central Government will take. The UPA Government had decided to not oppose the Delhi High Court’s reading down of Section 377 in 2009, and so it was private individuals and organisations which had appealed to the Supreme Court back then, leading to the Koushal judgment.
Additional Solicitor General Tushar Mehta refrained from setting out the government position during the court hearing. He said the Centre would file its response over the course of the day, and urged the court to restrict the scope of the hearings.
In the evening, however, comments by Attorney-General KK Venugopal seemed to indicate that the Centre was actually going to take a pro-Section 377 stance, and defend the 2013 Koushal judgment upholding its validity.
Speaking to ANI, he said that despite being Attorney-General, he would not be representing the government, since he had represented some of the petitioners who had challenged the Koushal judgment, and the government was taking a different stance in court.
The details of the government response being filed by ASG Tushar Mehta are not yet available.
“Order of Nature” an Antiquated Concept
Rohatgi pointed out that Section 377, which has remained unchanged since it was introduced in 1860 during colonial rule, was based on Victorian morals of the time. He pointed out that subsequent scientific research had found that sexual orientation is part of a person’s inherent nature, and so homosexuality cannot be against the order of nature.
He used the examples of the character of Shikhandi in the Mahabharat and the carvings in the Khajuraho temples to point out that in ancient India as well, homosexuality was considered part of the “order of nature”.
Regardless of what societal perception is, of course, if a legal provision is unconstitutional, it cannot stand, said Rohatgi, who went on to say that:
“Section 377 violates Part III of the Constitution. Right to life includes the right to dignity and to choose one’s sexual partner.”
The relevance of this point was emphasised by senior advocate Arvind Datar, who took over the reins after lunch when Rohatgi took ill. He pointed out how laws on homosexuality had changed over the years, after scrutiny on the basis of contemporary thought and constitutional values.
Section 377, however, had not been scrutinised by the British Parliament when introduced, and not by the Indian Parliament thereafter. There is a general presumption of constitutionality when it comes to our laws, he argued, but not for pre-constitutional laws.
Justice Chandrachud seemed to agree, noting that “the courts might not have the same deference for pre-constitutional laws which they have for post-constitutional laws, due to absence of Parliamentary will.”
Relevance of the Right to Privacy Judgment
Mukul Rohatgi mentioned at the outset that the case against Section 377 and the Koushal decision was made out strongly by the Supreme Court’s landmark right to privacy judgment from 2017 in the Puttaswamy case.
Justice Chandrachud, who had also been one of the judges who had heard that case, had specifically argued in his plurality opinion that the right to privacy included protection of one’s sexual orientation, as an inherent part of a person’s identity. Justice Sanjay Kishan Kaul’s judgment in that case had also said the same, with both judgments pointing out flaws in the Koushal judgment.
Senior advocate Arvind Datar also relied on the 2017 judgment to say that privacy encompasses decisional autonomy, and that sexual orientation is part of that. He also showed how Trinidad and Tobago used the Puttaswamy case to strike down laws criminalising consensual sex between men.
Two other judgments which have already been quoted and should play a large role in the decision of the Supreme Court are the NALSA judgment 2014 (which held self-identification of gender was important to one’s identity) and the Delhi High Court’s landmark Naz Foundation judgment in 2009 (which had decriminalised consensual homosexual acts).
The hearings will resume on 11 July.
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