Section 377 Arguments Summary Day 2: July 11, 2018.
Today, at 11.30 a.m., in a packed courtroom, the five judge bench comprising Chief Justice Dipak Misra, Justice Ajay Manikrao Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice Rohinton Nariman resumed hearing the challenge to the constitutionality of Section 377 of the Indian Penal Code, 1860.
Mr. Saurabh Kripal representing one of the petitioners resumed his arguments by stating that though the present lis was on the constitutionality of Section 377, sexual acts, though significant was only a singular aspect of the LGBT question. It was pertinent that the nature of these relationships itself be granted protection under Part III of the Indian constitution. He then cited relevant portions from Shafin Jahan and Shakti Vahini cases. He specifically alluded to the recognition of sexual orientation and gender identity in NALSA judgment.
Menaka Guruswamy began her submissions on behalf of an association of 350 people belonging to LGBT community from the Indian Institute of Technology. She made a passionate plea that Section 377 of the Indian Penal Code, 1860 violates Article 15 of the Indian Constitution. Article 15 gives protection against discrimination on the ground of sex which includes sexual orientation.
LGBT citizens are denied full participation in professional life. It impoverished the political discourse for the LGBT community. She specifically alluded to a Kenyan case where the court had relied on the Supreme Court’s judgment in Puttaswamy. She also expressed a fervent desire of the Supreme Court of India doing the same with respect to Section 377.
Ms. Guruswamy then proceeded to demonstrate that Section 377 is manifestly arbitrary. She specifically cited Shayara Bano v. Union of India where Justice Nariman used “manifestly arbitrary” doctrine to strike down the practice of instantaneous triple talaq. She argued that “Manifestly arbitrary” includes “something done by the legislature capriciously, irrationally, and/or without adequate determinative principle.” Justice Nariman and Justice Chandrachud nodded in agreement with Ms. Guruswamy’s point.
She also referred to Verma Committee Report which stated that sex includes sexual orientation. Accordingly, there are different sexual orientations in society. She referred to a statement issued by the Indian Psychiatric Society recently which held that homosexuality is not a psychiatric disorder. It is similar to heterosexuality and bisexuality. She stressed that criminalization leads to low self-esteem amongst the LGBT community. She pointed out that Indian Psychiatric Society supports decriminalization of homosexuality.
She then took the bench through a series of decisions by courts across the world. She specifically referred to the Canadian Supreme Court case Vriend v Alberta which held that “sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”. In the South African case of National Coalition of Gay and Lesbian Equality & Anr, it was held that the impugned sodomy statute had the symbolic effect of treating all gay men as criminals.
Taking a cue from the South African case, she said passionately that Section 377 made the daily lives of affected people vulnerable and insecure just like the apartheid era.She then proceeded to demonstrate how Section 377 affects the employment prospects of the LGBT community. Justice Misra specifically enquired if there are any specific rules which prevents the LGBT community from access to jobs.
Ms. Guruswamy referred to the All India Services Rules and the Central Civil Services Rules, a public official can be discriminated on the basis of a criminal charge or conviction. She then briefly alluded to the confidence that transgender people had acquired in the public sphere post NALSA judgment. Justice Chandrachud observed that Section 377 of the IPC has a chilling effect on both public and private employment. With this observation, the bench proceeded for lunch.
(The Report has been prepared by Mr. Samya Chatterjee)