By Prarthana Mitra
A five-judge Supreme Court bench heard pleas to repeal Section 377 of the Indian Penal Code for the third consecutive day on Thursday. History could be in the making as the bench concurred that legalisation of consensual gay sex will solve related issues like social stigma and discrimination against the LGBTQ community. Justice DY Chandrachud also bade the Parliament to recognise the community hereafter.
In five years, we've gone from "the so-called rights of the minuscule minority" to a point where not only is 377 going to go, but the debate is now on prohibiting discrimination on grounds of sexual orientation in non-State domains such as healthcare, education, and so on. (2/3)
— Gautam Bhatia (@gautambhatia88) July 12, 2018
Not an aberration, said a panel-member
Senior counsel Shyam Divan appearing for Voices Against 377 resumed his submissions, to get the proceedings underway. Divam added that the Supreme Court should not have re-criminalised Section 377 in 2013, as it has a “chilling effect” on the freedom of expression as described under Article 19, one of the most essential provisions of the Indian Constitution.
"Its not just consensual sex between homosexual partners that this Court should recognize, but their love for each other. How strongly must you love knowing that you are unconvicted felons under #Section377" – #Asia21 leader @MenakaGuruswamy. #LGBTQ https://t.co/sUnhhfSMCB
— Asia 21 Next Generation Fellows (@Asia21Fellows) July 12, 2018
Arguing for the positive dimensions of Article 14, Divan clarified that it stood for “equal protection of the law” instead of “equality before the law”. He also drew on previous praiseworthy judgments like the Puttaswamy verdict (privacy) and Hadiya ruling (freedom of choice to choose sexual partner), adding that this presented an opportune moment for the apex court to strike down Section 377 and issue additional declarations.
Judge Indu Malhotra also made a strong case against Section 377 on Thursday, opining that homosexual behaviour, present among animals just as in humans, is not an aberration but a variation. ”This community feels inhibited to go for medical aid due to prejudices,” she said, asserting the need to do away with the section.
#Section377: @MenakaGuruswamy says while the Supreme Court has recognised live-in relationships and its jurisprudence has been that of substantive equality, there is discrimination (towards homosexual persons) in the application of law like domestic violence laws.
— Bar and Bench (@barandbench) July 12, 2018
Thereafter, Justice DY Chandrachud referred to Section 21(a) of the Mental Healthcare Act, saying that it “expressly prohibits discrimination” on the ground of sexual orientation. “So Parliament itself now recognises the community,” he said in a potentially historic declaration, the kind of positive comments that the case needs to pull off de-criminalisation.
#Section377:
"Look at some liberal Constitutions. We will point out some countries on map where you need to look at", Justice Chandrachud to one counsel who was for retaining Section 377.— Bar and Bench (@barandbench) July 12, 2018
Advocate CU Singh and Ashok Desai traced the treatment of homosexuals by various ancient civilisations, adding that the current ban creates more chaos than good. Singh said that it would be a “huge step” to strike Section 377 down since the community has faced “criminalisation for over 160 years”.
Krishnan Venugopal who picked up after recess said quite correctly that Section 377 offers a legal basis to suppress alternative (non-binary non-heteronormative) sexuality, besides perpetuating a lifetime of discrimination, abuse, victimisation and mental illness in the name of law.
#Section377: 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 State has resorted to affirmative action, submits CU Singh
— Bar and Bench (@barandbench) July 12, 2018
Additional Solicitor-General Tushar Mehta then appeared on behalf of the government, urging the bench to uphold the constitutionality of the current provision. He also submitted documents to the court saying persons with different perceptions look at things differently.
The court will next hear the matter from the intervenors for an hour on 17 July, Tuesday.
Prarthana Mitra is a staff writer at Qrius
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