Five years after the Supreme Court upheld the validity of Section 377 of the Indian Penal Code, a five-member bench of the apex court reopened the case on Tuesday and heard the petitions for repealing the law.
Section 377 bars two consenting individuals of same genders from having a sexual relationship and also makes it an offence for two individuals to indulge in oral sex, among other things. This law has for long stood against the LGBTQ community to have freedom of expression and right to choose in the public space.
Earlier in January this year, the bench — comprising Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra — announced that it will reconsider the 2013 judgment in Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors case.
About perception, livelihood
Advocate Mukul Rohatgi appeared as the counsel for lead petitioner Navtej Singh Johar and said, “Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people,” as tweeted by Bar and Bench.
He told the bench about the Naz Foundation judgment and also the SC judgment from last year where it ruled that every individual has Right to Privacy.
“The issue of sexual orientation and gender are different; this case deals only with sexual orientation and has nothing to do with gender. We are saying that this is not a matter of choice but it is something innate and we are born with it,” Rohatgi told the court about how homosexuality is something that an individual is born with and that people cannot choose their sexual orientation
Order of nature
Since the law bars any kind of sexual intercourse between two individuals against the “law of nature”, he argued, “It uses the word “order of nature”. What is this order? It is the Victorian morals of 1860s.”
“Our order is much older” says Rohatgi and pointed out Shikhandi in Mahabharata.
“This order itself is natural, is that your point?” Justice Rohinton Nariman.
“As society changes, values change; What is moral 160 years ago might not be moral today,” said Rohatgi.
Additional Solicitor General Tushar Mehta, who represented the central government, said that the Centre is still to form a stand on this issue.
Senior advocate Arvind Datar then continued the discussion and took it back to the the history of how laws relating to homosexuality have changed across the world. Datar argued, “The 1860 Code was simply imposed on India and it did not represent even the will of the British Parliament.”
He also argued, “The object of the penal code is to identify an offence and punish for the same so that it acts as a deterrent. But when it is a natural orientation, how can it be an offence?”
So far, the bench has heard Rohatgi and Datar’s arguments and submission. The case appears to be on a positive path for the LGBQT community. It will again hear the petitioners tomorrow.
What activists say?
Activist Harrish Iyer said, “We just want Section 377 to decriminalise consensual sex between adults in private. This verdict of the Supreme Court in 2013 was not just words, it was a sentence.
“We shouldn’t be pushed to a point where we are left with nothing but hope. I am hopeful that in our true Indian spirit of respect for one another we read down Section 377.
“In the absence of any protection to non-females under the law, Section 377 is helpful. The three words being consent… adult … and private,” added Iyer.