The final day of hearing of Section 377 case witnessed arguments by the supporters of Section 377.
In his turn, Senior Counsel K. Radhakrishnan contended that what was criminalised under section 377 were certain acts and not gender identity or sexual orientation. He relied on the recent SC judgment in NCT of Delhi v Union of India, to advance arguments on the basis of “constitutional morality”. He argued that constitutional morality was against unbridled privacy.
“Love who you may as long as there is no physical manifestation of the love- that is your argument?”, asked Justice Chandrachud.
Proceeding to discuss sections 108, 109, 269 and 270 of the IPC, on the spreading of infection or disease, Radhakrishnan submitted, “section 377 is the modern medico-legal remedy to counter HIV”.
“As per your logic, anyone with an exposure or a possible exposure to HIV would invoke section 377? There are instances where the disease is brought to their wives by migrant labourers.HIV is spread by unprotected sex”, countered Justice Chandrachud.
At this point, Advocate Menaka Guruswamy, on the petitioners’ side, pointed out to the bench that the document being relied upon by Mr. Radhakrishnan was different from the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
“There may be a lot of material on the Internet, but all of it may not be credible to be taken on record”, commented Justice Chandrachud.
“The right to privacy cannot be extended to allow people to engage (in homosexual acts) and contract HIV. The institution of marriage is affected, the society is destabilized and the nation would lose its morality and virtuousness”, was Mr. Radhakrishnan’s ardent plea.
“This is an abuse of constitutional trust. It is undignified”, concluded Mr. Radhakrishnan.
Another advocate submitted how heterosexual married men engaging in homosexual acts would affect the institution of marriage.
When Justice Chandrachud inquired how, he replied that there is no law to regulate such behaviour, that sections 493 and 497 of the IPC which would ordinarily come into play are not gender neutral.
“So you concede that is such acts are indulged in by unmarried persons, then there is no problem”, commented Justice Nariman.
“To strike down a law, we need more material. We cannot simply abolish jails or the police body for an infringement of Fundamental Rights”, pressed the advocate.
He indicated Article 38 of the Constitution obligating the State to secure a social order for the promotion of the welfare of the people. Further, he contended, in the light of Article 39A, that the solution to ameliorating social disabilities is not abolishing the laws.
Finally, the counsel claimed that instances of rape have increased manifold post the Supreme Court’s recognition to live-in relationships. “So who asks them to live in?”, objected the Chief Justice.
The next intervenor contended that section 377, as perceived by the law enforcement agencies, is to be retained and not interfered with.
“I agree with Justice Chandrachud that the term ‘carnal’ does not attach any additional meaning to the act. There cannot be any spirituality associated with the sexual activity, it has to be carnal”, he advanced.
“In Naz Foundation, it was an NGO that had come forward to raise the issue. Here, the petitioners are individuals directly affected. So I question if section 377 affects the LGBT at all? Intercourse is sine qua non of the section. When two women engage in the sexual act, they cannot be apprehended, interrogated or prosecuted under section 377.”, continued the counsel.
“You are giving a narrow meaning to ‘intercourse’”, opined the Chief Justice.
“The Explanation (to section 377) says that penetration is sufficient to constitute an offence”, replied the advocate.
“Sufficient, but not necessary”, chipped in Justice Chandrachud.
“There can be no penetration in case of lesbians and female bisexuals. The section goes to transgenders and transsexuals”, insisted the advocate.
“In 1984, in the US, there were mass riots against the LGBT community. The rise in HIV was imputed to oral and anal sex. In our country, the National Aids Control Programme sensitises the ‘MSM’ community and distributes free condoms. Crores of rupees are spent for this purpose.”, he submitted.
“When Your Lordships write the judgment, please consider the interests of the members of the armed forces, prison inmates and hostels. If it is legitimised, it will give rise to a new breed of sex workers..”, he signed off.
“There is a difference between a criminal offence and misconduct”, came Chief Justice Misra’s insight.
In a brief rejoinder, Senior Advocate Anand Grover clarified that the risks of HIV inception were considered by the Delhi High Court in Naz Foundation, based on an affidavit by the Health Ministry in this behalf. He also submitted that the National Aids Control Programme caters to all and not merely the ‘MSM’ community.
After concluding the arguments, the bench reserved the matter for judgment.