On the third day of the Supreme Court hearing in the case of Section 377 law that criminalizes homosexuality, Senior advocate Shyam Divan started by pointing out the difference between Article 14, which is derived from the UK and which says “equality before law”, and the 14th amendment of the US which says “equal protection before law”. The point was to argue for the necessity of positive action on the state’s part for homosexual persons.

He added that the Act has a “chilling effect” on Article 19, which deals with freedom of expression as well. Divan gave example of the Hadiya case to make his argument. While Hadiya’s marriage was initially deemed unconstitutional, the court gave its nod later.,

Justice Indu Malhotra, who is part of the five-member SC bench, said, “This community feels inhibited to go for medical aid due to prejudices against them,” tweeted Bar and Bench. She added that family pressures, societal pressures etc force them to marry a person of the opposite sex and it leads to bi-sexuality and other mental trauma.

“Not just human beings, but many animals also show homosexual behaviour. It is not an aberration but a variation,” Justice Indu Malhotra making a strong case against Section 377.

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Justice DY Chandrachud then referred to Section 21A of Mental Healthcare Act, which expressly prohibits discrimination on the ground of sexual orientation and questioned whether the parliament also recognises them? Following this, CJI Deepak Misra asked, “Is there any provision in any other statute in this country wherein Sexual orientation has been considered not normal or a mental disorder?”

“Not just human beings, but many animals also show homosexual behaviour. It is not an aberration but a variation,” Justice Indu Malhotra, making a strong case against Section 377

Menaka Guruswamy, who fought for repealing the case yesterday as well and represented the IIT alumni, took the case of live-in relationships and the fact that SC has recognized it. But she said that there is discrimination towards the homosexual community like the domestic violence law.

The bench, headed by CJI Misra asked Guruswamy, whether there is any rule, regulation, by-law or guideline that restricts homosexuals from availing any rights that’s available to others? To this, she replied in the negative.

On Wednesday, the government refused to contest the criminalisation of the law and left the decision to the ‘wisdom’ of the apex court.

Earlier this year in January, Supreme Court after five years of criminalizing the law, decided to re-examine the case. In 2013, a two-member bench of the SC had criminalised the law involving two people of the same sex having sexual intercourse. The community since then has lived in fear and wants its repealed.

Picture credit- Indiatimes

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