[Section 377] [Day-1, Session-1] Popular Morality Can't Prevail Over Constitutional Morality: Mukul Rohtagi [Updated]

The hearing in the challenge to the constitutionality of section 377 of the IPC commenced before the Supreme Court five-judge bench on Monday, with Senior Counsel Mukul Rohatgi praying that the issue not be confined to the decriminalisation of the practice of homosexuality, but also a declaration that the rights of the LGBT community are covered under Article 21.

“The principle issue is whether the judgment [Suresh Kumar Kaushal v. Naz Foundation (2014) 1 SCC 1)] is correct or not...the constitutional rights, in fact the basic human rights, of a section of the society are involved...popular morality cannot prevail over constitutional morality because this section may be a minority...”, he advanced.

Speaking of the aversion and disdain the particular community is subject to by the society at large, in not just matters of employment but the general being, he quoted how in America it has been observed that the members of the LGBT community are made to feel like “unconvicted felons”.

“If the provision is held to be bad, then it is bad regardless of social morality...I will take Your Lordships through the stand of such jurisdictions as the US, UK, Canada, South Africa and even our neighboring country, Nepal...”, continued Mr. Rohatgi.

He cited the judgments that he shall place reliance on to buttress his case-

• NALSA v. UOI [(2014) 5 SCC 438], wherein the apex court recognised rights of the Transgenders;


• Naz Foundation v. Government of NCT of Delhi [(2009) 111 DRJ 1], where the Delhi High Court had struck down Section 377 as unconstitutional, which was subsequently overruled in Suresh Kumar Koushal;


•  the privacy judgment of the Supreme Court 9 judge bench in Justice K. S. Puttaswamy (2017)- “with emphasis on Justice Chandrachud’s judgment saying that Kaushal is wrong”, remarked Mr. Rohatgi.


• Lawrence v. State of Texas (2003), where the sodomy law in Texas was struck down by the US Supreme Court, with Bowers v. Hardwick (1986) being overruled by the majority


•  Shakti Vahini v. UOI (2018), where the apex court of India dealt with the issue of honour killings


• the Hadiya case (2018)


• Independent Thought v. UOI (2017), wherein Exception 2 to section 375 of the IPC was read down

Justice Rohinton Nariman recommended that the European judgments be also referred to at some stage by virtue of their importance. Mr. Rohatgi responded that while he shall address the concerns regarding Articles 14, 15 and 21, Article 19 and the related authorities would be dealt by Senior Advocate Arvind Datar.

Thereupon, he proceeded to read from the order dated January 8 in Navtej Singh Johar v. UOI, making a reference to a constitution bench for the reconsideration of the Suresh Kumar Kaushal judgment.

“Sexual orientation and gender identity are different issues; we are dealing with the former, while the latter has been addressed in the NALSA case...there, it was noted that some people may not be born clearly a male or a female and hence, a third gender was created...here, what we are saying is that whether you are gay or lesbian, it is not a matter of choice; it is innate, you were born that way and that is why you react differently from others of your sex...usually, males are attracted to females, but in this group, males are attracted to males...research made in the West shows that it is natural, that it has a connection with one’s genes and usually springs at the time of adolescence...the Indian Psychiatric Society has recently said that homosexuality is not a disease...”, he elaborated.

“Section 377 is based on the Victorian morals of 1860...the position in ancient India was not so, as is indicated by the existence of a character like Shikhandi (in the Mahabharat) and the depictions in the Khajuraho temples...this is also the ‘order of nature’ What is the order of nature in 1860 can't be the order of nature today? order of nature then can change with passage of time, laws made now become invalid over time...”, he continued.

“So you are saying that for this sexual minority, this is natural and in fact, the ‘order of nature’?”, clarified Justice Nariman.

In the same thread, Chief Justice Dipak Misra quoted from a passage he had recently read, “Many things look absolute, but are not so and suffer from Einstein’s relativity”.

“Whether a pre-constitution law, not adopted by our Parliament, which affects the rights our people, would have the same value as a post-constitution law?”, stated Mr. Rohatgi.

“Section 377 violates Part III (of the Constitution). Right to life includes the right to dignity and to choose one’s sexual partner.The effect on section 377 is by and large on gay men though prima facie it is sex neutral", he continued.

“The ‘order or nature’ is not defined and it would change as the society changes.Accordingly, a law which was valid 50 years ago could be invalid today”, he drove in the point.

He mentioned several Supreme Court rulings including inter alia Chief Justice Misra’s judgment in Common Cause (2018) on the right to dignity, Shreya Singhal (2015), Manoj Narula (2014) on constitutional morality.

Mr. Rohatgi described the 2009 judgment of the Delhi High Court in Naz Foundation as a “very well researched judgment”.

“The Ministries of Home Affairs and Health took the stand that the provision is valid, and the Union of India did not file an appeal against the judgment. Instead a review of the Supreme Court’s verdict in Suresh Kaushal's case was filed. So their stand is clear.”, he commented.

At this point ASG Tushar Mehta interjected, saying “Our stand in 2018 is yet to come”,

“Regardless of whether they concede or oppose, if the section is unconstitutional, it will go”, said the CJI.

Then the discussion veered to the ‘Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity’, set out in the Delhi High Court and the NALSA judgements.

“The principles say there may be an overlapping of sexual orientation with gender identity”, reflected Justice Chandrachud.

“We are not talking about gender. Males are males. Gay men do not call themselves something else.”, responded Mr. Rohatgi.

“If the aspect of gender is considered, then the rights may be wider than in case of sexuality.”, opined Justice Chandrachud.

“The predominance is of sexual orientation”, said Mr. Rohatgi. When Mr. Mehta sought to submit that the reference was only in respect of section 377, Mr. Rohatgi retorted that the petition is not confined to section 377.

“If we strike down section 377, then you may speak of marriage or you may mention live-in relationships”, observed the CJI.
“In a testamentary disposition, a live in partner may also count”, replied Mr. Rohatgi.

“That is why I am saying the scope is wider than only sexual orientation”, weighed in Justice Chandrachud.

When Mr. Rohatgi insisted that the majority in Justice K. S. Puttaswamy has already agreed that the Suresh Kumar Kaushal judgment is incorrect, the Chief Justice remarked that it could not be said to be so.

When the Senior Counsel pleaded that petitions not be confined to the constitutionality of section 377, CJ Misra explained, “there is no prohibition on inheritance or live in, but we cannot predetermine these issues even before we have declared section 377 unconstitutional.”

The bench thus indicated that it is confining adjudication only to the constitutionality of criminalization of homosexuality under Section 377 IPC, and is not addressing larger issues pertaining to civil rights of homosexual community.