Sec 377 hearing: Courtroom debate on privacy and whether a pre-constitutional law represents our people

Having concluded the first of 10 very important hearings in the plea for scrapping Section 377 of the IPC, the Supreme Court had acknowledged its judgement in August 2017, calling the right to sexual orientation “the core of the fundamental rights.” Justice Chandrachud himself had reportedly stated that the right to privacy under article 21 of the Indian Constitution must be upheld when reconsidering the 2013 judgement, which declared homosexuality to be a criminal offence.

The hearing began with the five-judge bench allowing the NGO ‘Naaz Foundation’ to make its arguments in court, through Senior Advocate Mukul Rohatgi. It had been reported that Rohatgi began his case by highlighting the fact that values change with societies. Using that as a basis, he told the court that a law (Section 377) that was framed 160 years ago, cannot be upheld today as the moral truth, especially when it violates one’s human rights. He was also quoted by ANI saying, “The issue deals only with sexual orientation and it has nothing to do with gender.”

Citing the example of Shikhandi in the Mahabharata, Rohatgi tried to drive home the point that, our order is much older and natural, in an overwhelming majority of the cases. He further questioned the court on whether a pre-constitutional law that was not framed by our Parliament and does not recognise the needs of our people, deserves to remain in the penal code.

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However, it is pertinent to note here that the case of Shikhandi in the Maharabharat was different and a case of changed sex and not sexual orientation.

‘Bar & Bench’ had also reported some intriguing courtroom drama, featuring Advocate Rohatgi and Additional Solicitor General (ASG) Tushar Mehta

After a quick lunch break, Senior Advocate Arvind Datar continued the arguments. Having begun by tracing the history of how laws relating to homosexuality have changed across the world, Datar argued, “The 1860 Code was simply imposed on India and it did not represent even the will of the British Parliament.”

This was an argument briefly mentioned by Rohatgi too, but Datar decided to continue explaining the importance of holding the post-constitutional laws with a higher regard, than those that were imposed with no consensus.

The argument appeared to have been convincing, because Justice Chandrachud told Datar that the Courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, due to the absence of Parliamentary will. This, on its own, is a major setback for the precedence of Section 377.

Along with this, Datar raised a compelling question: “The object of the penal code is to identify an offence and punish for the same so that it acts as a deterrent. But when it is a natural orientation, how can it be an offence?”

He concluded by stating various other jurisdictions taking similar decisions (as what was being pled for) and ended by explaining the relevance of the Supreme Court’s judgement on the Right to Privacy in August 2017: “The judgment says privacy encompasses decisional autonomy. It is a natural corollary that sexual orientation is also covered by that”.

As the court concludes today’s hearing, the response does appear positive, not only because the Judges have noted the prime precedence of Article 21, and its importance in this case, but also because the Court has unequivocally recognised that a law that was framed before the constitution, without the population’s chance to voice its opinion, cannot be held at the same level as a law made with parliamentary procedure, in the post-constitutional era. If the remaining days, are as positive as this, change will be a certainty.

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