Section 377 hearing in Supreme Court: Mukul Rohatgi tells bench IPC section based on Victorian morals, not ancient India

A five-judge Supreme Court bench concluded for the day a crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender.  The bench assembled Tuesday to hear petitions demanding challenging the vires of Section 377 of the India Penal Code (IPC).

In January 2018, the Supreme Court (SC) said it will reconsider its 2013 judgment in Suresh Kumar Koushal & Ors. versus Naz Foundation & Ors. The top court in January upheld the constitutionality of Section 377 of the IPC, which criminalises homosexuality.

In a 2016 petition, filed by five persons challenging Section 377, the apex court issued notice to the central government and referred the matter to a larger Supreme Court bench. Justice Rohinton Fali Nariman and newly-appointed judge Justice Indu Malhotra will now be part of the bench along with Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud. The two will replace Justice AK Sikri and Justice Ashok Bhushan.

Senior advocate Mukul Rohtagi appeared for the lead petitioner Navtej Singh Johar while senior advocate Anand Grover represented petitioners Arif Jafar, Ashok Row Kavi and intervenor Naz Foundation. There are six substantive writ petitions along with multiple intervention applications challenging validity of Section 377 of IPC. Here are the details of the cases:

1) Navtej Singh Johar versus Union of India (UOI), WP (Crl) No. 76/2016

2) AKKAI PADMASHALI versus UOI, WP(C) No.572/2016

3) Keshav Suri versus UOI, WP (Crl) No.88 of 2018

4) Arif Jafar versus UOI, WP(Crl) No.100/2/18

5) Ashok Row Kavi & others versus UOI, WP(Crl) No.101/2018

6) ANWESH POKKULURI versus UOI, WP (Crl) No. 121/2018

Rohatgi's arguments

Addressing the newly-constituted Supreme Court bench, Rohatgi opposed advocate Manoj George's demand to list curative petitions along with current writ petitions. Scope is different and Bench is different, argued Rohatgi.

The contentions around IPC Section 377 arose in 1994. Providing for prosecution of 'Whoever voluntarily has carnal intercourse against the order of nature,' the section's text suggests archaic Judeo-Christian norms of collective morality. This section deems any instance of non-procreative, heterosexual intercourse as a unnatural, and warranting of a maximum punishment of imprisonment for life. Further, in light of the fact that the text of this section has remained unchanged since its enactment over 150 years ago, it holds any form of consensual penetrative sexual activity, between adults irrespective of their sexual orientation, as illegal and warranting State-sanctioned punitive action.

"The first question is the correctness of the judgment in question. If the provision is bad, it does not matter what is the perception of the society," Rohatgi told the bench. He further added that reliance is placed upon the Delhi High Court judgment in Naz Foundation (2013), and the Supreme Court judgments of NALSA and the privacy matter.

"Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people," said Rohatgi and added that his case was made out strongly by privacy judgment of Supreme Court. Aside from the Indian judgments, he also placed reliance on certain US precedent.

To that Justice Nariman pointed out that European judgments should also be cited.

Rohatgi further told the bench that the issue of sexual orientation and gender are different. "This case deals only with sexual orientation and has nothing to do with gender. We are saying that this is not a matter of choice but it is something innate and we are born with it." "It uses the word 'order of nature'. What is this order? It is the Victorian morals of 1860s," argued Rohatgi, emphasised that ancient Indian order was very different. "Our order is much older," Rohatgi said and pointed to Shikhandi in Mahabharata. "This order itself is natural, is that your point?" Justice Nariman asked.

"The effect of Section 377 in our country is mostly on men even though it appears sex-neutral," Rohatgi said.

Questions arose on legal status of same sex relationships and such couples. Additional Solicitor General Tushar Mehta said hearing should be confined to Section 377 alone to which Rohatgi retorted, "Who are you to say what we should confine ourselves to."

"In such a case we should be allowed to file our response", argued Mehta. "Do not restrict it to Section 377, further directions are needed for protection of my life and property," said Rohatgi. "First let us get out of this mess of Naz Foundation/ Kaushal," said CJI Dipak Misra.

Bar and Bench reported that Rohatgi, amid peals of laughter, responded saying, "That is easy for me. The Supreme Court bench tells Rohatgi to stick to arguments related to Section 377 alone.

"We are not talking about gender. Gay men and gay women don't call themselves something else, the issue is of orientation", Rohatgi argued. Dealing with the Naz Foundation judgment of Delhi High Court, Rohatgi said that the judgment was well researched by the then chief justice.

The bench met again at 2 pm post lunch.

Senior Advocate Arvind Datar's arguments

As the hearing began after lunch, senior advocate Arvind Datar commenced arguments on behalf of petitioner Keshav Suri. In Koushal's case, Datar said, the Supreme Court held Section 377 to be reflective of the will of Parliament, "which in fact it is not, as it is a pre-constitution era law." With reference to para 38 of the Koushal judgment, Datar stated that the proposition regarding pre-constitutional laws is wrong, as Section 377 was imposed without being passed by the Parliament.

To this, Chief Justice Dipak Misra asked,"Is there any judgment of this court that pre-independence laws will not have the benefit of the presumption of constitutionality," and Datar denied. Justice Chandrachud further said courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, "due to absence of Parliamentary will."

He further said that Section 377 applies even to anal sex between man and woman, since it applies to any intercourse that is not penal-vaginal; in that respect strict classification is not there. To this, Datar observed that the object of penal code is to identify an offence and punish for the same so that it acts as a deterrent. "But when it is a natural orientation, then how can it be an offence", he asked.

Datar also argued that transgenders have been granted the protection of Article 14 and there is no reason not to extend the same to those having a different sexual orientation. While Datar said the right to a sexual orientation is part of Article 21, Justice Chandrachud said the right to choose a partner comes under Article 21, as held in the Hadiya judgement. Datar went onto say the rights of the LGBT community cannot be considered "so-called" rights.

Datar further argued that following the privacy verdict, Section 377 has been eclipsed and needs to be struck down. He added that if the foundation of the law exists no more, there is no reason to continue with it. Citing the case of Jason Jones vs Attorney General of Trinidad and Tobago, which had relied on Puttaswamy judgment of Indian Supreme Court to strike down laws criminalising consensual sex between men, Datar referred to the paras in the privacy verdict. He concluded his arguments with asking the Court to declare that there is nothing against the order of nature.

After Senior Advocate Arvind Datar's conclusions, Advocate Saurabh Kripal began his arguments by citing the case of Lawrence versus Texas but the hearing soon ended for the day until Wednesday.

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Updated Date: Jul 10, 2018 17:10:15 IST