[dropcap]R[/dropcap]epresenting a group of academicians led Professor Nivedita Menon associated with issues pertaining to sexuality and gender, Krishnan Venugopal attacked section 377 and it’s buttressing judgement of the Koushal case on multiple fronts.
He contended Section 377 to be violative of the fundamental freedom of expression guaranteed under Article 19(1)(a). Citing various reports from non governmental organisations, he asserted that homosexuals became a target of harassment and intimidation, both by the State and individuals. Further, he refers to the chilling effect that Section 377 has upon the LGBT community’s pursuit of justice, as they fear being persecuted by the police under the impugned section, rather than act upon their complaints. He further cites various judgements from American and Canadian jurisdictions to assert how the criminalisation affected by Section 377 infringes upon the freedom of expression.
Venugopal also critically examines the historical development of the section, vis-a-vis Lord Macaulay’s comments during the draft penal cod debates. These set the context for the gag Section 377 imposes upon to self-expression, while creating a climate of fear that has a chilling effect on conversation about and expression of alternate sexuality.
Venugopal also attacks the “morality” aspect propounded by defendants of the Section. Asserting it to be construed as “constitutional morality” rather than “public morality” he cites various judgements, including the recent Government of NCT of Delhi v. Union of India.
He also cites various instruments of international law, as well as foreign precedents to assert the curtailment of rights by Section 377. Apart from denying the LGBTQ community it’s right to assemble and associate peacefully via demonstrations, he also cites instances of the Section being used to curb artistic expression as well.
Venugopal also relates the issue at hand to “conscience” mentioned in Article 25, establishing a link between the aforementioned and the one’s sexuality, which is a belief at the core of one’s identity.
Further, he propounds how the Section undermines the democratic framework by negatively affecting the diversity and plurality of norms upheld by the landmark NALSA verdict, and how the law is facilitative of unreported abuse, which results in the community feeling “less than human”.
He further argues how the Koushal judgement needs to be overruled in light of its incongruence with succeeding judgements such as NALSA and Puttaswamy, as well as denying private parties the locus to intervene and defend the Section’s constitutionality.
