Senior advocate Arvind Datar, Saurav Kripal and former attorney general Mukul Rohatgi all quoted from past verdicts and made emotional pitches to drive home their point
Right to privacy judgment was the chief weapon used by a battery of lawyers on Tuesday in the Supreme Court in their fight against the criminalising of section 377 of the IPC (Indian Penal Code) that punishes homosexual acts.
It was a dramatic day inside the Supreme Court where lawyers argued passionately in favour of decriminalisation of homosexuality. Senior advocate Arvind Datar, Saurav Kripal and former Attorney General Mukul Rohatgi all quoted from past verdicts to make an emotional pitch against what modernists describe as an archaic law, Section 377 of the IPC.
The constitution bench of CJI Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra started hearing the case at 11.30 AM. Just as advocate Manoj George sought to list the curative petition along with the current writ petition, a sarcastic Rohatgi rose to oppose it saying it was a different bench.
Rohatgi said it was a matter of choice whether one identified oneself as gay or straight. He argued that homosexuality had been prevalent since ancient times, but this section was based on the Victiorian concept of morality.
In what can be seen as a positive move towards abrogating the law, Justice Nariman observed that sexual minority was in the order of nature. Also, the Supreme Court said it wouldn't stop anybody from addressing the arguement in Section 377 of the IPC even if a formal application has not been filed. Clearly, the apex court took this matter with the sensitivity it deserved.
Rohatgi, while discussing the "order of nature" doctrine, said, "What is the order of nature? Was it the order of nature in 1860? What was the order of nature then can change with passage of time. Laws made 50 years ago can become invalid over time." Rohatgi continued, "The issue of sexual orientation and gender are two different terms. Here we talk of sexual orientation. They should not be mixed up. We are not asking of a gender." He insisted that homosexuality was not a matter of choice, whether one was a gay or a lesbian. He said the orientation was innate.
After a heavy first half of the session, the bench broke for lunch only to soon resume the hearing at 2 PM, a hearing that not only the LGBTQ community but the entire country is following keenly. If Rohatgi batted well in the first half, the second half was dominated by senior advocate Arvind Datar. He started, “(The) privacy judgment has recognised decisional autonomy and body’s autonomy. It's inescapable that the right to life includes sexual orientation. Right to sexual orientation will be meaningless without right to choose (one's) partner." He declared to a silent courtroom that, after the privacy judgment, Section 377 has got eclipsed.
The Supreme Court presided over a historic hearing today where the bench was evaluating and having a relook at various aspects of Section 377, especially after a 9-judge SC bench upheld privacy to be a fundamental right and integral to right to life with dignity recently. After that, the draconian provisions of Section 377 have ben criticised as being regressive and blatantly outdated.
In Dec 2013, the SC had overturned the act of reading down of the law by the Delhi High Court that had decriminalised homosexuality and thus upheld the criminalisation of LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Queer) communities.
A petition was filed by 32 individuals to repeal Section 377 of the Indian Penal code (IPC), which criminalises homosexuality. The Centre had filed a petition to postpone the hearing of petitions filed by Naz foundation and many others and also requested four more weeks to file its response in the matter. However, the apex court on Monday refused to delay the hearing. The court said, “The Centre can file whatever it wants during the hearing.”
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