Section 377 Supreme Court hearing Day 3: Homosexuality not an aberration, says Justice Indu Malhotra

The Supreme Court should not have re-criminalised Section 377 in 2013, senior counsel Shyam Divan, who appeared for Voices Against 377, told the five-judge bench hearing arguments against Section 377 on the third day. The court will next hear the matter on 17 July.

Drawing from previous judgments which have been praised, Divan referred to the "equality before law" clause of the triple talaq judgment. He also said that Justice Rohinton Nariman's judgment in the triple talaq case can be relied on for the case against Section 377 as well.

However, he said the positive connotation of Article 14 needs to be emphasised on, which is "equal protection of the law" instead of "equality before the law".

Divan also suggested that this would be an "opportune" time for the Supreme Court to issue declarations other than just striking down Section 377.

Divan concluded by bringing in Article 19, one of the most essential provisions of the Indian Constitution, to state that Section 377 has a "chilling effect" on freedom of expression as described by the Article.

 Section 377 Supreme Court hearing Day 3: Homosexuality not an aberration, says Justice Indu Malhotra

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SC bench observes community faced deeprooted prejudices 

Justice Indu Malhotra also noted the difficulties that the members of LGBT community face due to prejudice against them. "This community feels inhibited to go for medical aid due to prejudices," she said.

The bench concurred with the reasoning and said that once consensual gay sex is no longer criminalised, then related issues like social stigma and discrimination against the LGBTQ community would also go away.

Malhotra said, "Because of family pressures, societal pressures etc, they are forced to marry opposite sex and it leads to bisexuality and other mental trauma." She also noted that not only human beings have homosexual orientations, but many animals are known to show homosexual behaviour as well. "It is not an aberration but a variation," she said.


Weighing in on the observations on provisions in the Constitution, Justice DY Chandrachud referred to Section 21(a) of the Mental Healthcare Act, saying that it "expressly prohibits discrimination" on the ground of sexual orientation. "So, the Parliament itself now recognises the community," he said.

The Supreme Court's observations in favour of recognising the LGBTQ community come soon after the Indian Psychiatric Society said that it did not recognise homosexuality as a psychiatric disorder.

Speaking in a historical context, advocate CU Singh said that it would be a "huge step" to strike Section 377 down since the community has faced "criminalisation for over 160 years". He also stated that the State has resorted to "affirmative action" when there has been "historical deep-rooted discrimination".

Singh concluded by saying that a "positive articulation" from the apex court would go a long way in ending such discrimination.

Meanwhile, Chief Justice of India Dipak Misra asked whether there is a provision in any other statute of the IPC in which "sexual orientation is considered as a mental disroder"

Advocate Menaka Guruswamy replied saying that there is discrimination against homosexual people in the application of civic laws like those preventing domestic violence. She, however, observed that the Supreme Court has made decisions of "substantive equality" when it comes to recognising live-in relationships.

Senior counsel Ashok Desai presents arguments 

Desai started off his arguments by saying, "This law has created utter chaos." Referring to the book Same-Sex Love in India, spoke of the LGBTQ community in the context of various religions.

Advocate Desai noted that just because few people have been convicted under Section 377,  there is "no ground to support the law".

Senior advocate Krishnan Venugopal presents arguments

Advocate Venugopal began by noting that Section 377 is used to harass members of the community who don't "speak up" due to "societal pressure and stigma". He added that the provision offers a legal basis to "suppress alternate sexuality".

In conclusion, he said that Section 377 violates Article 19 as it prevents the LGBTQ community from exercising their right to freedom of association.

Additional Solicitor-General Tushar Mehta, presenting arguments on behalf of the Centre, urged the court to stick to the Constitutionality of the provision, saying persons with different perceptions look at things differently.

However, in response to Mehta's argument, the Supreme Court had a couple of reactions. Justice Chandrachud used the example of other liberal countries in response to those for Section 377.

The counsels arguing in favour of keeping Section 377 said that since the IPC falls under concurrent list. If any of the states wanted to amend it, they would have done so, but that was not the case. However, Chief Justice interjected to this and said that the fact that the law wasn't amended does not mean its constitutionality cannot be challenged.

With inputs from The Leaflet and Bar and Bench.

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Updated Date: Jul 13, 2018 07:59:14 IST