Additional Solicitor General Tushar Mehta on Wednesday said the Union of India does not contest an individual’s right to choose a partner, Live Law reported. Mehta made the statement while representing the Centre during a Supreme Court hearing of a batch of petitions demanding amendments to Section 377 of the Indian Penal Code, which criminalises homosexual acts.

In its affidavit to the court, the government has said it would leave the decision of the constitutional validity of Section 377 to “the wisdom of the court”.

A five-judge Constitution bench of the Supreme Court is hearing arguments on the 19th-century law that criminalises “unnatural sex, against the order of nature”, punishable with life imprisonment. The bench comprises Chief Justice of India Dipak Misra, and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The United Kingdom, on whose Constitution many of India’s laws are based, abolished the law against same-sex relationships in 1967.

Arguments against the law

Advocate Menaka Guruswamy, who is representing 350 LGBTQ Indian Institute of Technology graduates, said Section 377 is a colonial legacy that creates a chilling effect on the sexual choices of people and discriminates against them on the basis of the gender of their partners.

“These young people need to be unafraid to love and be loved, and they should be protected by this Court,” she told the court. The lawyer referred to Nariman’s judgement in the triple talaq case in August that said a law can be struck down if it is arbitrary and unreasonable. Guruswamy said Section 377 should go out of book on that principle “as it has no rational basis or objective”.

She said Section 377 was like apartheid, a policy of racial segregation and discrimination against non-whites. “It’s not just consensual sex between homosexual partners that this court should recognise but their love for each other,” Guruswamy said. “How strongly must you love knowing that you are unconvicted felons under Section 377?”

Senior advocate Anand Grover said the matter is not just about decriminalisation of Section 377, but it is also about recognising constitutional rights of equality, justice and liberty of sexual minorities. Grover said the word sex mentioned in Article 15 should be interpreted as “sexual orientation” and therefore discrimination on the basis of sexual orientation is constitutionally prohibited.

Grover added that there is no definition of “penetration” in law. “Indian courts have interpreted it,” he said. “Order of nature has been interpreted. Even in a man-woman relationship, Section 377 can be invoked.”

Section 377 requires a new understanding, he claimed. “After the amendment to Section 375 of the Indian Penal Code – following the 2012 Delhi gangrape case – it covers oral sex, anal sex etc... And if such acts are done consensually by adults, it cannot be regarded as against the order of nature anymore,” Grover said, according to LiveLaw.

Senior lawyer Shyam Divan, appearing for the Voices Against 377 organisation said it was time to declare the right to intimacy as part of right to life under Article 21. He reiterated Grover’s argument that sex under Article 15 should be interpreted to mean “sexual orientation” to avoid discrimination.

“Section 377 perpetuates discrimination on the basis of sexual orientation denying equal access to sexual minorities to education, job, healthcare,” Divan told the bench. “The Act creates second class citizens. LGBTQ people are forced to go invisible and underground, depriving them of freedom of expression.”

Justice Chandrachud clarified that in the light of amended Section 375, consensual anal sex between man and woman cannot be regarded as crime, Live Law reported. He said Section 375 will only cover same sex couples.

On Tuesday, Chandrachud said a person’s choice of partner is a fundamental right and it can include a same-sex partner, reported The Hindu. The judge was reacting to a submission made by senior advocate Arvind Datar that the right to sexual orientation was meaningless without the right to choose a partner. Datar was appearing for hotelier Keshav Suri.

Chandrachud drew his observation from the March 2018 judgement in the Hadiya case, which held that neither the state nor one’s parents can influence an adult’s choice of partner. Hadiya’s conversion from Hinduism to Islam and her subsequent marriage to a Muslim man had set off a political and legal maelstrom.

The six petitions and interventions before the Supreme Court – filed by non-governmental organisation Naz Foundation, parents of queer people and Voices Against 377, a collective of human rights groups – urge 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 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”.