Senior advocate Mukul Rohatgi on Tuesday said the Supreme Court has a duty to protect the queer community as it is the protector of fundamental rights.
A five-judge Constitution bench of the Supreme Court is hearing arguments on a batch of petitions that demand amendments to Section 377 of the Indian Penal Code. The 19th-Century law criminalises “unnatural sex, against the order of nature”, which is punishable with life imprisonment.
Rohatgi, representing some of the petitioners, argued that values change as society evolves. “What is moral 160 years ago might not be moral today,” he said. “It [Section 377] uses the word ‘order of nature’. What is this order? It is the Victorian morals of 1860s.”
He said the law that criminalises consensual gay sex is against the fundamental rights of Indians and “societal perception” cannot be an excuse for it. “Constitutional morality has to overtake societal perception,” said Rohatgi. “Don’t blame the society because we all have grown up with this provision in the statute.”
He said sexual orientation and gender are different things, and this case deals only with sexual orientation, not gender. “Gender and sexual orientation should not be mixed,” he said. “The petitioner is not asking for a separate gender. It is a matter of choice whether one identifies as gay or otherwise.”
Rohatgi added that the case has ramifications not just on sexuality but also on how LGBTQ – lesbian, gay, bisexual, transgender and queer – community is perceived. “It will have impact on how society looks at these people, about perception, about livelihood and jobs for such people.”
Additional Solicitor General Tushar Mehta, appearing for the government, said that the proceedings should be confined to the arguments on Section 377, and not include the broader range of rights, such as same-sex marriage and inheritance. He also sought time from the court to file a reply, if broader matters were to be argued. However, Chief Justice of India Dipak Mehtra said the court would focus only on Section 377 at present, and discuss broader matters whenever they arise.
The Centre is yet to a take a stand on whether it wants Section 377 decriminalised.
While Rohatgi said he would try to convince the court the matter had to do with sexual orientation rather than gender, Justice DY Chandrachud intervened to point out that there was an element of gender in LGBTQ rights. “Gender rights are on a higher pedestal than mere sexual rights,” he said.
Advocate Arvind Datar, appearing for the petitioners, said that the Law Commission had recommended the repeal of Section 377. He argued that sexual intercourse between people of the same gender cannot be said to be “against the order of nature” because it is part of a person’s nature, Live Law reported.
The advocate brought up the verdict of the Supreme Court, which upheld the right to privacy, and said it included the right to choice. “Sexual orientation is essential part of an individual’s identity,” Datar said.”If there is a statute and the state is not able to show a compelling public interest [to keep the statute], it has to be struck down.”
Justice Indu Malhotra said that British Prime Minister Theresa May had apologised for criminalising same-sex relations during colonial rule. “The Irish Prime Minister [Leo Varadkar] is supposed to be gay and Iceland Prime Minister [Katrín Jakobsdóttir] a lesbian,” she added.
The Supreme Court then said it would hear the petitioners again on Wednesday.
The six petitions and interventions – filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups – have urged the court to reconsider its own judgement from 2013, when it set aside a 2009 order by the Delhi High Court decriminalising homosexual activity. The top court placed the onus on Parliament, saying only the legislature can change laws. The United Kingdom, on whose Constitution many of India’s laws are based, abolished the law against same-sex relationships in 1967.
In August, the Supreme Court had ruled that the right to privacy is a fundamental right, that it is intrinsic to life and liberty. Sexual orientation, the court said in its judgement, is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine”.