DAY 3: Historic challenge to constitutionality of Section 377 in Supreme Court begins: Live updates with The Leaflet

[RECAP: Advocate Krishnan Venugopal]

Representing a group of academicians led Professor Nivedita Menon associated with issues pertaining to sexuality and gender, Krishnan Venugopal attacked section 377 and it’s buttressing judgement of the Koushal case on multiple fronts.

He contended Section 377 to be violative of the fundamental freedom of expression guaranteed under Article 19(1)(a). Citing various reports from non governmental organisations, he asserted that homosexuals became a target of harassment and intimidation, both by the State and individuals. Further, he refers to the chilling effect that Section 377 has upon the LGBT community’s pursuit of justice, as they fear being persecuted by the police under the impugned section, rather than act upon their complaints. He further cites various judgements from American and Canadian jurisdictions to assert how the criminalisation affected by Section 377 infringes upon the freedom of expression.

 Venugopal also critically examines the historical development of the section, vis-a-vis Lord Macaulay’s comments during the draft penal cod debates. These set the context for the gag Section 377 imposes upon to self-expression, while creating a climate of fear that has a chilling effect on conversation about and expression of alternate sexuality.

Venugopal also attacks the “morality” aspect propounded by defendants of the Section. Asserting it to be construed as “constitutional morality” rather than “public morality” he cites various judgements, including the recent Government of NCT of Delhi v. Union of India.

He also cites various instruments of international law, as well as foreign precedents to assert the curtailment of rights by Section 377. Apart from denying the LGBTQ community it’s right to assemble and associate peacefully via demonstrations, he also cites instances of the Section being used to curb artistic expression as well.

Venugopal also relates the issue at hand to “conscience” mentioned in Article 25, establishing a link between the aforementioned and the one’s sexuality, which is a belief at the core of one’s identity.

Further, he propounds how the Section undermines the democratic framework by negatively affecting the diversity and plurality of norms upheld by the landmark NALSA verdict, and how the law is facilitative of unreported abuse, which results in the community feeling “less than human”.

He further argues how the Koushal judgement needs to be overruled in light of its incongruence with succeeding judgements such as NALSA and Puttaswamy, as well as denying private parties the locus to intervene and defend the Section’s constitutionality.

PRE LUNCH RECAP- WHO ARGUED WHAT

Senior Advocate Shyam Divan

The hearings resumed for the third day. Senior Advocate Shyam Divan, continuing his arguments talked about the Positive content of Article 14. He read out portion’s from Justice Nariman’s judgement of the Shayara Bano case about how the equal protection of law under has positive content. He argued that positive content ought to require issuance of suitable declaration in line with sub para D of the petitioner’s  prayers, which stated that no person may be discriminated against with respect to housing, employment, healthcare on the basis of their sexual orientation or gender identity. He further said that it is an opportune moment for the Court to issue such a declaration.

Reading para 40 of his submissions, Divan also argued for the right to intimacy being read into Article 21, following which he read out relevant portions from the National Coalition of Gay and Lesbian case. He then referred to the Lawrence v Texas portion about the law seeking to control ronal relationships. He stated that the right to choose includes the right to enter into relationships. He followed this up with reading sections from Justice Chandrachud’s judgement in the Putttaswamy case holding the Koushal judgement being not good law. 

Divan further argued that social approval is not he basis to recognise intimate personal choices. He asked the Court to notice how closeted individuals altered their conduct in the time period between the Delhi HC and the Koushal judgement. Additionally, he held the Koushal jugdement to be bad as it recriminalised something that was decriminalised, as once society moves forward to ensure emancipation, law should not fall back. With this he concluded his arguments.

Senior Advocate CU Singh

CU Singh argued on behalf of mental health experts. Justice Indu Malhotra commented as to how not only psychological but also medical aid, one aspect of the right to life, is affected as doctors do not maintain confidentiality. She further talked about how bisexuality is perpetuated as family pressure prevents people from being open about their situation and forcefully enter into marriages. She further said that how hundreds of other species apart from humans indulge in sam sex relationships. CU Singh submitted a lot of references  to homosexuality can be found among royals as well as commoners. To this Justice Malhotra added as to how the Rig Veda talks about prakriti and vikriti, hence establishing the variation.

Justice Chandrachud then raised the issue of the sections 21(a) and 18 of the mental healthcare act which talk about sexual orientation. Singh, reading out Section 18 stated that it is only restricted to the aforementioned Act. Justice Chandrachud responded by stating that common cause established procedure to issue advance directives, and the mental healthcare was one of the sources they drew ideas from. This was followed by VJI Misra asking to be shown a petition that held the LGBTQ community to be disentitled from adopting grounds of discrimination. To this Singh responded by stating there was stigma. The CJI then noted that the stigma was there because of the criminality attached to the sexual act. Once that is removed, any two people can be intimate and go anywhere. He further stated that the psychiatric have spent a lot of time to establish it as not being a mental disorder. 

CJI Misra then asked about other statutes that held LGBT status to be disorder. On Maneka’s response that the domestic violence act only providing remedies for one sex, THE CJI held it to be a different matter altogether, with the issue at hand being whether a person wanting to open a shop suffers disqualification or not. Maneka responded by saying in light of a criminal proviso negating their existence, separate legislation would not be needed.

 CJI Misra then asked the parties that in a scenario where it is decriminalised, and people can identify as gay or lesbian, what may follow? To this Anand Grover responded by stating how sodomy constitutes valid grounds under divorce law, but consensual sodomy is not an offence under rape law.

This was followed by CU Singh stating that they are not praying just for Section to be read down, but also the Supreme Court to articulate something that prohibits any kind of discrimination based upon sexual orientation. Justice Nariman then asked them to look at Section 39 of the mental healthcare act, while Justice Chandrachud referred to Section 115 which decriminalises an attempt to commit suicide under severe stress.

CU Singh further proceeded to read out an interview with a  psychiatric expert which highlighted the trauma and mental stress faced by the LGBTQ community in UK, which is one of the most free countries. He concluded his arguments by reiterating his prayers for Section 377 to be struck down and discrimination based upon sexual orientation and gender identity be prohibited.

Senior Advocate Ashok Desai

CU Singh was followed by Desai who argued Section 377 as anathema to the concept of fraternity, which he explained by referring to the corresponding Constituent Assembly Debates. THE CJI commented that fraternity was one of the great flags of the french revolution and the Court had referred to it in the Subramanian Swamy verdict. Desai then pointed to instances pertaining to the LGBTQ, both old and new, from the book “Same Sex Love in India”. He further cited an article by Leela Seth, “My Son Has Become A Criminal,  and Divan, “ How Judges Accept Homosexuality”. He then read out the order of the Court which referred the matter to a larger bench. He further argued that much literature established such behaviour as acceptable in India, and stated that not only was this abolished as a crime in the UK, but also had the State apologise to the people.

Stating that foreign jurisprudence is not necessarily right, Desai then referred to the Puttaswamy and NALSA judgements. Claiming it to be a question of human conduct and condition, he argued that very few people being prosecuted is not a valid ground to support the law.  

He then stated how ssame-sexlove was accepted in Greece till the introduction of Abrahamic traditions, and it was prevalent in India till it was prohibited by the Britisher’s introduction of the IPC. He then read out sections from Koushal, Puttaswamy on Koushal and a speech from Ambedkar to reiterate how Section 377 is anathema to fraternity.

Desai concluded by stating how Buddhism, Jainism and Sikhism affirm existing queer identity and reading portions from Lawyers Colletive’s workshops on HIV and sexual orientation where they had also invited Justice Micheal Kirby who has been vocal about LBGTQ rights. 

[RECAP: ARGUMENTS MADE BY SENIOR ADVOCATE ASHOK DESAI]

CU Singh was followed by Desai who argued Section 377 as anathema to the concept of fraternity, which he explained by referring to the corresponding Constituent Assembly Debates. THE CJI commented that fraternity was one of the great flags of the french revolution and the Court had referred to it in the Subramanian Swamy verdict. Desai then pointed to instances pertaining to the LGBTQ, both old and new, from the book “Same Sex Love in India”. He further cited an article by Leela Seth, “My Son Has Become A Criminal,  and Divan, “ How Judges Accept Homosexuality”. He then read out the order of the Court which referred the matter to a larger bench. He further argued that much literature established such behaviour as acceptable in India, and stated that not only was this abolished as a crime in the UK, but also had the State apologise to the people.

Stating that foreign jurisprudence is not necessarily right, Desai then referred to the Puttaswamy and NALSA judgements. Claiming it to be a question of human conduct and condition, he argued that very few people being prosecuted is not a valid ground to support the law.

[RECAP: ARGUMENTS MADE BY SENIOR ADVOCATE C U SINGH]

Senior Advocate CU Singh argued on behalf of mental health experts. Justice Indu Malhotra commented as to how not only psychological but also medical aid, one aspect of the right to life, is affected as doctors do not maintain confidentiality. She further talked about how bisexuality is perpetuated as family pressure prevents people from being open about their situation and forcefully enter into marriages. She further said that how hundreds of other species apart from humans indulge in sam sex relationships. CU Singh submitted a lot of references  to homosexuality can be found among royals as well as commoners. To this Justice Malhotra added as to how the Rig Veda talks about prakriti and vikriti, hence establishing the variation.

Justice Chandrachud then raised the issue of the sections 21(a) and 18 of the mental healthcare act which talk about sexual orientation. Singh, reading out Section 18 stated that it is only restricted to the aforementioned Act. Justice Chandrachud responded by stating that common cause established procedure to issue advance directives, and the mental healthcare was one of the sources they drew ideas from. This was followed by VJI Misra asking to be shown a petition that held the LGBTQ community to be disentitled from adopting grounds of discrimination. To this Singh responded by stating there was stigma. The CJI then noted that the stigma was there because of the criminality attached to the sexual act. Once that is removed, any two people can be intimate and go anywhere. He further stated that the psychiatric have spent a lot of time to establish it as not being a mental disorder.

CJI Misra then asked about other statutes that held LGBT status to be disorder. On Maneka’s response that the domestic violence act only providing remedies for one sex, THE CJI held it to be a different matter altogether, with the issue at hand being whether a person wanting to open a shop suffers disqualification or not. Maneka responded by saying in light of a criminal proviso negating their existence, separate legislation would not be needed.

CJI Misra then asked the parties that in a scenario where it is decriminalised, and people can identify as gay or lesbian, what may follow? To this Anand Grover responded by stating how sodomy constitutes valid grounds under divorce law, but consensual sodomy is not an offence under rape law.

This was followed by CU Singh stating that they are not praying just for Section to be read down, but also the Supreme Court to articulate something that prohibits any kind of discrimination based upon sexual orientation. Justice Nariman then asked them to look at Section 39 of the mental healthcare act, while Justice Chandrachud referred to Section 115 which decriminalises an attempt to commit suicide under severe stress.

CU Singh further proceeded to read out an interview with a  psychiatric expert which highlighted the trauma and mental stress faced by the LGBTQ community in UK, which is one of the most free countries. He concluded his arguments by reiterating his prayers for Section 377 to be struck down and discrimination based upon sexual orientation and gender identity be prohibited.

[RECAP]

Justice Chandrachud then raised the issue of the sections 21(a) and 18 of the mental healthcare act which talk about sexual orientation. Singh, reading out Section 18 stated that it is only restricted to the aforementioned Act. Justice Chandrachud responded by stating that common cause established procedure to issue advance directives, and the mental healthcare was one of the sources they drew ideas from. This was followed by VJI Misra asking to be shown a provision that held the LGBTQ community to be disentitled from adopting grounds of discrimination. To this Singh responded by stating there was stigma. The CJI then noted that the stigma was there because of the criminality attached to the sexual act. Once that is removed, any two people can be intimate and go anywhere. He further stated that the psychiatric have spent a lot of time to establish it as not being a mental disorder.

[RECAP: WHAT ADVOCATE CU SINGH ARGUED]

Senior Advocate CU Singh argued on behalf of mental health experts. Justice Indu Malhotra commented as to how not only psychological but also medical aid, one aspect of the right to life, is affected as doctors do not maintain confidentiality. She further talked about how bisexuality is perpetuated as family pressure prevents people from being open about their situation and forcefully enter into marriages. She further said that how hundreds of other species apart from humans indulge in same sex relationships. CU Singh submitted a lot of references to homosexuality can be found among royals as well as commoners. To this Justice Malhotra added as to how the Rig Veda talks about prakriti and vikriti, hence establishing the variation.

[RECAP: ARGUMENTS MADE BY SENIOR ADVOCATE SHYAM DIVAN]

The hearings resumed for the third day. Senior Advocate Shyam Divan, continuing his arguments talked about the Positive content of Article 14. He read out portion’s from Justice Nariman’s judgement of the Shayara Bano case about how the equal protection of law under has positive content. He argued that positive content ought to require issuance of suitable declaration in line with sub para D of the petitioner’s  prayers, which stated that no person may be discriminated against with respect to housing, employment, healthcare on the basis of their sexual orientation or gender identity. He further said that it is an opportune moment for the Court to issue such a declaration.

Reading para 40 of his submissions, Divan also argued for the right to intimacy being read into Article 21, following which he read out relevant portions from the National Coalition of Gay and Lesbian case. He then referred to the Lawrence v Texas portion about the law seeking to control personal relationships. He stated that the right to choose includes the right to enter into relationships. He followed this up with reading sections from Justice Chandrachud’s judgement in the Putttaswamy case holding the Koushal judgement being not good law.

Divan further argued that social approval is not the basis to recognise intimate personal choices. He asked the Court to notice how closeted individuals altered their conduct in the time period between the Delhi HC and the Koushal judgement. Additionally, he held the Koushal judgement to be bad as it recriminalised something that was decriminalised, as once a society moves forward to ensure emancipation, law should not fall back. With this he concluded his arguments.