‘Order of Nature’
In stark contrast to the issues raised during the Suresh Koushal case hearings, homosexuality being in line with the indeterminate “order of nature” mentioned in IPC Section 377’s text, has not asserted primacy of importance in the arguments of any of the counsels up till now, or any of the comments offered by the judges.
Indicative of a far more liberal, advanced and nuanced understanding of issues pertaining to sexuality as compared to 2013, the Court, through the conduct of its officers on both sides of the bench, has displayed a departure from the primitive and regressive understanding of homosexuality being a disease or a medical disorder.
This can be witnessed in the arguments advanced by Senior Advocates Mukul Rohatgi, Aravind Datar and Anand Grover. From the bench, CJI Dipak Misra and Justices Nariman and Malhotra made remarks upholding homosexuality to be natural.
The hearings were not merely restricted to issues pertaining to homosexuality. The problems Section 377 created for the transgender community which prevented them from asserting their gender identity in addition to their rights recognised by the NALSA judgment were also raised.
While Advocate Jayna Kothari and Aravind Datar argued the impugned section to be violative transgenders’ fundamental right to equality guaranteed by Article 14, Anand Grover brought forth the denial of healthcare to transgenders facilitated by Section 377.
Union of India’s stance
ASG Tushar Mehta representing the Union of India, refrained from adopting any stance with respect Section 377 on behalf of the Union, preferring to leave the adjudication upon the “court’s wisdom”.
Reliance Upon NALSA and Puttaswamy
The influence and impact of the two aforementioned verdicts was evident. Counsels for every petition cited either one or both of them in furtherance of their arguments. Succeeding the Koushal judgment, these two landmark verdicts are hailed as bulwarks of civil liberties and fundamental rights.
The NALSA judgement was relied upon to establish the recognition of gender identity and the guaranteed equality before law, amongst other points. The Puttaswamy verdict was cited with respect to establish the premise of privacy being a recognised fundamental right, in addition to its relevant sections which explicitly reject Koushal.
The tussle between two prevalent perceptions of morality were also conclusively addressed. Upholding the arguments proposed in favour of “Constitutional Morality” over the “Public Morality”, Justice Nariman commented upon the relevant sections of the Naz Foundation upholding the same, While Mukul Rohatgi emphasised the importance of constitutional morality overtaking social mores.
CJI Misra too reiterated the Court following Constitutional Morality rather than majoritarian morality when an intervening advocate proposed the idea of a referendum to decide the issue.
The Right to choose a partner
Apart from addressing the issues of gender identity and sexuality, the hearings have also seen the right to freely choose a partner. Facilitated by the Shakti Vahini (honour killing) verdict and the Shafin Jahan (Hadiya case) verdict, arguments extending the aforementioned right guaranteed under Articles 14, 19 and 22 to the LGBTQ community were advanced by Mukul Rohatgi, Saurabh Kirpal and Maneka Guruswamy.
Denial of access to justice
Senior Advocate Anand Grover brought forth the problems of how Section 377 alienates the LGBTQ community from the Justice System. Apart from facilitating abuse of power and blackmail by the police against the LGBTQ community, he pointed out the rise in the number of cases pertaining to the aforementioned cases, an observation made by Advocate Krishnan Venugopal as well.
Stories of petitioners
The Court bear witness to Counsels narrating perilous ordeals their clients were made subject to. Senior Advocate Anand Grover talked about the plight of the LGBTQ community post the Koushal verdict, while Menaka Guruswamy highlighted the plight of the IIT students and alumni she was representing, with Sunil Mehra, the first petitioner not joining the IAS even after clearing the examination due to the fear of the law being used against him.