Section 377 Case Arguments Summary Day 2: July 11, 2018.
Ms. Menaka Guruswamy resumed her arguments post lunch by stating that Section 377 is not a reasonable restriction under Article 19(2). Section 377 has no proximate connection to public order, decency or morality. She argued that the notion of social morality is inherently subjective and cannot be criminalized.
She argued that Section 377 violates fundamental right to form associations as provided under Article 19(1)(c). Additional Solicitor General (ASG) Tushar Mehta was extremely agitated at this suggestion and said that it does not restrict the formation of any association. Justice Nariman requested the ASG to let her continue her arguments. She cited the example of her client who was not allowed to get a document notarized due to disapproval of her sexuality. She requested the court to declare it unconstitutional and it would mean a lot for her client. She said that associations included political and social associations. She specifically referred to the Companies Act which prohibits a person from becoming a director on conviction. This has a direct impact on the LGBT community.
She cited the case of Brown v. Board of Education which held that segregation was not just about discrimination but it affected the 'collective conscience' of a society. She submitted that the Court must impose constitutional morality and give legitimacy to change social morality. She ended her arguments by saying that “this case is about our humanity”.
Ms. Guruswamy’s made a passionate plea for declaring Section 377 unconstitutional.
Mr. Anand Grover represented Arif Jafar who had been arrested by the police for distributing condoms amongst gay men. He began his submission by stating the case concerned constitutional values including justice, equality, liberty, fraternity and dignity.
Referring to the impact of NALSA, he said that every transgender person used it as a bible and an armoury.
He argued that Section 377 has no provisions on consent and was manifestly arbitrary. He drew a distinction with Section 375 of the IPC. Justice Misra requested him "not to touch Section 375 of the IPC."
He referred to a series of international human rights instruments including the International Covenant on Civil and Political Rights (ICCPR) which prohibits discrimination on the basis of sexual orientation.
He said that there were instances of the LGBT community suffering from blackmail and extortion on dating apps. Mr. Grover requested the Court to see Section 377 as a dialogue between the court, civil society and the state. He pleaded that the Supreme Court should liberate them and make them fully independent.
Ms. Jayna Kothari, representing transgender rights activist Akkai Padmashali focussed on the question of gender identity flowing from the NALSA judgment. She argued that there are still two state laws which mentions that transgenders are prone to commit crimes. She said that sex under Article 15 includes both sexual orientation and gender. It also violates the freedom of expression under Article 19(1)(a) of the Indian Constitution. She specifically referred to the Yogyakarta principles which held that consensual sexual activities should not be criminalized.
Shyam Divan, the intervenor for Voices Against 377 commenced his arguments. He held that Article 21 must recognize the 'right to intimacy' within its ambit. Mr. Divan specifically highlighted how Section 377 impacts the daily lives of the LGBT community. This includes cases of medical emergency, opening a bank account, housing and employment.
Mr. Divan made an interesting submission that Section 377 makes the LGBT community both visible and non-visible. The latter happens when it criminalizes them and makes them second class citizens. He requested the court to see gender identity as a personal sense of body which is expressed through conduct.
The day’s arguments ended on this note. Mr. Divan will resume tomorrow.
(This report has been prepared by Mr. Samya Chatterjee.)