Day 3 Arguments: Morning

Constitutionality of Section 377 IPC

Section 377 Arguments Summary Day 3: July 12, 2018


The Supreme Court, at 11.30 A.M, resumed hearings in the challenge to constitutionality of Section 377 IPC case. In the morning session which went on for 2 hours, advocates Shyam Divan, C.U. Singh, Ashok Desai and Krishna Venugopal made their submissions.


Shyam Divan (representing intervenor Voices Against 377) focussed on equality argument. Article 14 contains two dimensions of equality: ‘equality before the law’ indicates negative content; ‘equal protection of the laws’ offers positive content. Under the positive content of equality, State is obligated to offer protection to transgender persons. Several precedents support this stance including Justice Nariman’s judgment in Shayara Bano case.


Divan argued that Section 377 violates dignity of people from LGBT community (‘community’). It offends sexuality which is one of the central aspects of human personality. Section 377 adversely impacts self esteem of the community. He requested the Court to consider additional declarations to strengthen their rights.


Right to intimacy should be included within right to privacy, Divan suggested. The South African case of National Coalition for Gay and Lesbian Equality supports this position and considers expression of sexuality as the core of intimacy.


C.U. Singh appearing on behalf of mental health professionals submitted their opinions on homosexuality. Justice Malhotra observed that outside metro cities, access to mental health is a hurdle – this forces people to become bisexual and often result in marital problems. ASG Tushar Mehta pointed out that Ministry of Health runs health camps in rural India which addresses this issue.  Justice Misra questioned if any provision in Mental Healthcare Act bars employment of the community.


Singh sought the Court to declare rights beyond the question of Section 377; a similar argument was raised earlier by Divan. Section 30 of Mental Healthcare Act, 2017 aims to remove stigma associated with mental illness. Leading American mental health professionals have recognized continued stigma against the community despite protection offered by Lawrence v. Texas case. The Court should consider arguments beyond the question of constitutionality and provide measures to fight stigma attached to the community.


Ashok Desai sought to argue that India’s literary traditions celebrate homosexuality. He pointed out that writings of Plato celebrate same sex relationships. Same sex marriage is considered unselfish as it does not lead to procreation.


Krishna Venugopal, represented a group of renowned academicians. He began his arguments by stating that Section 377 violates freedom of conscience.


At this point, the bench proceeded for lunch. Krishna Venugopal will continue his submissions in the post lunch session.


(This report has been prepared by Samya Chatterjee and Kruthika R.)