Section 377’s Race is Run, and the Judges Have No Time for Bigotry

A recap of all the action from the SC hearings on Section 377.

The SC will conclude hearings on constitutionality of Section 377 on Tuesday

(Photo: The Quint)

(On Thursday, 6 September 2018, the Supreme Court is expected to announce its decision on the constitutionality of Section 377 of the Indian Penal Code. In light of this, we are republishing this article from The Quint’s archives originally published on 13 July 2018, during the hearings which encapsulate the arguments by the petitioners, the government and the supporters of Section 377 – as well as the mood of the judges)

Thursday saw the best and worst of the hearings on the constitutionality of Section 377 of the IPC so far. The best included an insightful discussion between the judges and some of the lawyers on mental health and the adverse effects of criminalising same-sex acts on the LGBT+ community.

The worst came in the form of the ragtag band of lawyers that approached the court after lunch on behalf of various religious groups and individuals who support Section 377, raising absurd and prejudiced arguments including this shocker from advocate Rajesh Aggarwal:

“Homosexuality only exists in lower class of animals, which have vegetative reproductive systems.”

Despite the late unpleasantness, however, there has been a great deal to appreciate in the way the hearings have proceeded thus far, in particular the acceptance across the bench that homosexuality is not an illness, but a natural orientation.

This progressive outlook, combined with the weight of legal opinion (especially from the right to privacy judgment), means there is a genuine sense of hope among the LGBT+ activists and their lawyers that Section 377 will be read down to decriminalise consensual same-sex acts.

A Last Stand by Narrow-Mindedness

When the Centre clarified on Wednesday that it would not be taking a stand in the case, it looked for a brief while like there would be no opposition in court to the reading down of Section 377 – no private intervenors had shown up as yet. As a result, there was a widespread expectation that the hearings would conclude on Thursday, after the star-studded legal panel against Section 377 finished.

However, prejudice and narrow-mindedness weren’t going to be ignored without a fight, as the intervenors after lunch proved. It is perhaps understandable that there may be some groups and individuals who are not comfortable with homosexuality and other carnal acts “against the order of nature”. But while they should get a chance to present their views in the interests of fairness, the least they could do is argue on the legal issues.

Chief Justice Dipak Misra had to repeat this several times to the assortment of lawyers arguing for these intervenors, who include among them Suresh Kumar Koushal, the astrologer whose petition had led to the Supreme Court infamously upholding Section 377 back in 2013.

Despite the CJI’s repeated instructions to the lawyers to argue the fundamental rights issues raised by the other side, they continued to harp on the concept of the order of nature with gems like these:

1. “The mouth is an organ only to be used for eating, and the anus is to be used only for excretion. These are not sexual organs. Using these organs for sex is against nature.”
2. “If people can choose their orientation, tomorrow someone will say, ‘My orientation is that of a thief’. Can we accept all this?”

The former point was reminiscent of one the bizarre arguments made by Koushal before the Supreme Court last time, as discussed by him with The Hindu:

“You can’t allow anal intercourse. The back portion of a body is for throwing out the waste of the body. It is like an exhaust fan. If you allow it, then it is like reversing the motion of the earth, like reversing the blood flow.”

The quality of arguments was dismal, particularly when compared with the court craft of the reputed laywers on the other side of the divide, including Shyam Divan, Menaka Guruswamy, Krishna Venugopal, Ashok Desai, Arvind Datar and even Mukul Rohatgi. Interestingly, even the pro-377 lawyers recognised this, noting that no “eminent jurists” were willing to take up the case. With few sound legal arguments available after the right to privacy case, of course, it would hardly be surprising to see the final hour and half of hearings consist of more narrow-minded, prejudiced arguments.

Fortunately, the bench of CJI Misra and Justices DY Chandrachud, Rohinton Nariman, AM Khanwilkar and Indu Malhotra have showed little patience for these, dismissing them as irrelevant. They agreed to hear the intervenors till the end of session on Thursday, but eventually adjourned the hearing till 17 July when it became apparent that the pro-377 side had failed to submit any written arguments.

‘Constitutional Issues Not Settled by Referendum’

While they will have a chance to try again on Tuesday, one particular exchange summed up what the court’s approach will be to deciding the fate of Section 377. And it is one that will cheer the LGBT+ community for its rejection of the kind of blinkered thought that led to the 2013 decision in which Justices Singhvi and Mukhopadhyay had said Section 377 could not be struck down just because it affected the “so-called rights” of a “minuscule fraction”.

One of the intervenors (who claim they represent 95% of India) argued that the Supreme Court didn’t have the authority to read down Section 377, and that to do so would require an assessment of public opinion.

CJI Dipak Misra(Photo: PTI)

CJI Misra was having no truck with this, however, saying:

“We don’t settle constitutional issues by referendum. We don’t follow majoritarian morality, but follow constitutional morality.”

The Government’s Disappointing Hedging Act

It is disappointing that the Centre decided against taking a stand on Section 377, particularly since some of their spokespersons like Shaina NC have previously said the government would support reading it down.

However, the MHA affidavit submitted on Wednesday only said they would be leaving the issue to the wisdom of the apex court – though it does ask that the scope of the case be restricted to ‘whether or not consensual same-sex acts in private should be decriminalised’.

As Anoo Bhuyan points out here, this appears to show an anxiety on the part of the Centre to ensure the case does not end up dealing with the broader rights of the LGBT+ community, including marriage, adoption and inheritance, as some of the petitioners against 377 have asked.

This hedging of its bets by the Government has also meant we have seen ASG Tushar Mehta caught on the hop during proceedings, having to say nothing, yet making several incongruous interventions.

ASG Tushar Mehta(Photo: IANS)

On Wednesday, he raised concerns that the right to choose one’s partner must not allow for perversions like incest or bestiality (an issue raised on Thursday by the pro-377 lawyers as well). Justice DY Chandrachud was forced to intervene, and remind him that the scope of the hearings was restricted to consenting adults, not children or animals.

On Thursday, he argued that some material submitted by one of the anti-377 lawyers, Ashok Desai, which described some homosexual practices, was obscene and scandalous. He then took exception to the petitioners’ references to Shikhandi and other Indian myths to argue that there was an acceptance of the LGBT+ in ancient India – according to Mehta, people tend to perceive things according to their orientation.

Mehta also got into an argument with Justice Indu Malhotra over whether the Vedic concepts of Prakruti and Vikruti showed an acceptance of different orientations. The ASG was disproportionately vociferous in insisting that the Vedic texts said no such thing, perhaps worried about the implications for personal law questions which may be taken up after the Section 377 case is decided.

Homosexuality NOT a Mental Disorder

Justice Indu Malhotra, for whom this is a first big constitutional case, was also heavily involved in the discussion on mental health. This came up during the arguments before lunch of senior advocate CU Singh, representing an association of mental health professionals.

Singh was talking about the burdens created by a provision like Section 377, which punishes the LGBT+ community for their inherent personality and natural orientation. Justice Malhotra spoke up at his point, noting that the mental health professionals who should be helping them also fail to maintain confidentiality, and are often themselves prejudiced, which makes it very difficult for homosexuals and bisexuals to get the treatment they need.

Justice Indu Malhotra(Photo Courtesy: Lawctopus/Image Altered by The Quint)

Justice Malhotra also drew attention to the fact that because of the stigma in society, many homosexual persons are forced to accept heterosexual marriages which only leads to further problems.

The most refreshing aspect of the exchange between Mr Singh and the entire bench, however, was the acceptance without debate that homosexuality is not a mental disorder.

In the Delhi High Court and the Supreme Court last time, this had been an issue which had seen a great deal of arguments, and no mental health professionals had been willing to testify that this was the case. This time, however, there was no doubt in the judges’ minds that sexual orientation was something people were born with, and the petitioners were able to point also to the Mental Healthcare Act 2017 which implicitly recognises this.

A Declaration Against Discrimination?

One of the important requests by both CU Singh and senior advocate Shyam Divan (on behalf of Voices Against 377) was a request that, along with reading down Section 377 to exclude consensual acts, the judges should also issue a positive declaration to prohibit discrimination against the LGBT+ community.

A consistent theme of the arguments by all the parties against Section 377 has been the kind of discrimination faced by the LGBT+ community. On Wednesday, advocate Menaka Guruswamy had argued powerfully on the impact of the penal provision and the 2013 judgment.

I asked our petitioners, what must it take to live in this shadow? How strongly must you love, to withstand being an unconvicted felon? That is the depth of these relationships. This is not just about sex. This is what needs to be constitutionally recognised. This is the business of life. And it’s not just about sexual acts.

Menaka Guruswamy, Advocate

Advocate Menaka Guruswamy(Photo courtesy: Twitter)

Guruswamy made another important point on Thursday, which could have significant consequences in the future. In response to CJI Misra’s question about which legislations specifically discriminated against the LGBT community, she noted how the Domestic Violence Act did not cover same-sex relationships:

Because homosexuals have not been allowed to exist, as per Section 377, therefore there were no other laws required to prohibit their actions.

This led to Justice Chandrachud observing that “Over the years in Indian society we have created an environment which has lead to deep-rooted discrimination against people of the same sex, which has in turn impacted their mental health.”

It remains to be seen, however, whether the judges have been fully convinced of the need to issue a declaration against discrimination, which we will only know when the judgment eventually comes out.