By Prarthana Mitra
On the second day of hearing on the constitutional validity of Section 377 of the Indian Penal Code, the Centre conveyed to the five-judge Bench that the decision rested entirely on the “wisdom” of the apex court. Additional Solicitor General Tushar Mehta on Wednesday filed a three-page affidavit in the Supreme Court, refusing to take a stand, but he also urged the bench to refrain from venturing into territories that may affect civil rights, inheritance, adoption and marriage rights.
In 2009, the Delhi High Court had declared Section 377 of the IPC as unconstitutional, a ruling that was overturned in December 2013 when the apex court re-criminalised gay sex. Hearing on all pending pleas resumed on Tuesday. The first day had ended with three out of the five judges differing over the scope and extent of examining the Section 377 of the IPC.
Former Attorney General and senior advocate Mukul Rohatgi, appearing for a petitioner, said on the first day, “My life as a sexual minority has to be protected and hearing on the issue cannot be only restricted to just section 377 of the IPC. There are several rights involved which go beyond the scope of Section 377”.
Advocate Saurabh Kirpal resumed his submissions from Tuesday, on the freedom to choose ones sexual partner as vindicated by the Hadiya ruling.
Adv. Sourav Kirpal argues that the SC declaration in Shakthi Vahini Case ( against interference by Khap Panchayaths) that right to choose partner forms part of Articles 19 and 21 is applicable to #LGBTQ community. #Section377 #Sec377
— Live Law (@LiveLawIndia) July 11, 2018
Menaka Guruswamy, appearing for IIT students and alumni, opened fresh proceedings on Wednesday, referring to Article 15 and Article 16, the cornerstone of equality protection. Arguing that Section 377 violates Article 15, she explained that the discrimination revolves around the sex of the partner.
Drawing attention to the larger implications of this law, Guruswamy passionately argued against the code which denies the sexual minority equal participation in professional sectors and violates their right to seek employment including for the State and in constitutional offices. Section 377 also violates the right to form an association under Article 19, she said, to which ASG Tushar Mehta raised an objection as it was “beyond the scope of this hearing.”
Chief justice of India Dipak Misra said any disqualification related to Section 377 will be “automatically lifted if provision is struck down”. Guruswamy concluded her statement by asserting that this case is about how the Supreme Court can change social morality to Constitutional morality. She referred to the position statement issued by the Indian Psychiatric Society on July 2, declaring that homosexuality is not a psychiatric disease.
— Ankit Dasgupta ğ³ï¸âğ (@ankydasgupta) July 10, 2018
Later, lawyer-activist Anand Grover began his arguments, saying fundamental rights deserve an “expansive interpretation” and not a “restrictive interpretation”. Grover invoked the case of Aligarh Universitys Dr Ramchandra Siras, asserting that the central issue here is protecting one’s liberty and dignity. Another core issue is the denial of justice since the gay community preferring to live closeted lives often face blackmailing and extortion.
After this, advocate Jayna Kothari brought up other relevant implications, pertaining to her client who was born as a male but not now identifies herself as a female. An sexual interaction with her husband, thereby, comes under the ambit of Section 377. Transgenders are suspected of unnatural offences under Section 377 too, Kothari concluded, briefly mentioning discriminatory statutes against the trans community of India.
Senior Advocate Shyam Divan then argued that the right to intimacy should be announced as a part of the right to life. Calling sexuality and sexual rights a part of human rights, Divan’s impassioned statement rang the fourth bell for the day.
Our focus is not only on the sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21 we are dwelling on the nature of relationship and not marriage we want the relationship to be protected under Fundamental Rights and to not suffer moral policing, observed Justice Chandrachud on Wednesday.
With the Government declining to contest the case, the 377 hearings have given the apex court a rare chance to push the frontiers of equality and non-discrimination via jurisprudence.
Prarthana Mitra is a staff writer at Qrius
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