By Prarthana Mitra
As the Section 377 hearing entered the last leg, the five-judge bench on Tuesday, heard arguments in favour of upholding the law from intervenors. On the fourth day of the hearing, the top court reiterated that suppression is wrong and one should accept gay relationships. As the bench reserved its judgement on the petitions to free private and consensual homosexual acts from criminality, India’s LGBT community can see the light at the end of a very long tunnel.
Here’s what happened
Gaping holes in the Indian Penal Code came to light, as classifications of carnal intercourse in the “order of nature” are not clear, thus enabling pro-Sec 377 agitators. Petitioners have previously demanded the inclusion of the consent clause, which is entirely missing from the Section.
#Section377: Sexual orientation by itself has not been defined either in Constitution or IPC. We cannot import it into the statute, Manoj George.
— Bar & Bench (@barandbench) July 17, 2018
Anything which needs to be done to 377 in the manner sought by the petitioners should be left to the Parliament, said advocate Manoj George representing two Christian organisations.
To this, Justice Rohinton Nariman replied firmly, “The moment we are convinced there is a violation of fundamental rights, we will strike it down and not leave it to legislature.” Giving a strong indication that the Bench would declare that Section 377 violated the right under Article 21 of the LGBTQ community to sexuality, sexual orientation and choice of sexual partner, Nariman reiterated, “The whole object of fundamental rights chapter is to strike down those laws which would otherwise not be struck down by majoritarian governments. We won’t wait for majoritarian governments to enact or delete.”
Justice Chandrachud also called George out for referring to a hate website in one of the petitions. Over the course of his arguments, the advocate cast expressed doubts about homosexuality as an inborn or acquired condition and recalled the NALSA verdict which had legalised transgender sex. Besides arguing for the right to constitute a family and procreate, George also dug up the HIV/AIDS myth to discredit the LGBT community.
Representing Trust of God Ministries, senior advocate K Radhakrishnan who presented his arguments next, also referred to Section 377 as a modern medical-legal necessity to counter AIDS.
#Section377: Gender identity and sexual orientation are not criminalised by Section 377. It criminalises certain acts and whoever commits those acts will be liable, KS Radhakrishnan.
— Bar & Bench (@barandbench) July 17, 2018
Justice Menaka Guruswamy raised doubts regarding the credibility of some of the material submitted by the advocate who continued after lunch, with a tirade on how families, the bulwark of Indian social structure since Rig Vedic times, would be in shambles once Section 377 is struck down.
#Section377: If S. 377 struck down, HIV/AIDS will spread rapidly; India will lose nobility, character, virtuousness, K Radhakrishnan. #LGBTQ
— Bar & Bench (@barandbench) July 17, 2018
Suresh Kumar Koushal’s lawyer then commenced his arguments for upholding the law, on the grounds that it affects only a few, and that rapes have increased manifold since live-in relationships were deemed legal.
For the LGBT community and its allies, the dream is well within reach
After concluding statements for the day, the Supreme Court bench reserved its judgement for a later date.
Although the arguments dampened the spirit to an extent, it was heartening to see the determination of the bench to decriminalise homosexuality, with names like Alan Turing being dropped. Justice Indu Malhotra countered George’s preposterous claims, “So heterosexual people do not transmit HIV?” Justice Chandrachud eloquently explained that same-sex couples living in denial with no access to medical care inside closets are more prone to contract and spread sexually transmitted diseases. Justice Nariman openly called the intervenors out for their Victorian-era morality.
With the government still silent on the entire issue, it is now up to the apex court to protect minority rights against a majoritarian rule.
Prarthana Mitra is a staff writer for Qrius
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