Section 377: Partner can be from the same sex, says Justice Chandrachud

Says neither the State nor one’s parents can influence an adult’s choice of partner

A person’s choice of a partner is a fundamental right, and it can include same-sex partner, Justice D.Y. Chandrachud said on Tuesday.

The observation came on the first day of hearing by a Constitution Bench of petitions challenging the constitutionality of Section 377 of the Indian Penal Code, a colonial era provision that criminalises private consensual sex between adults.

Violation of privacy

Justice Chandrachud, who is part of the five-judge Bench led by Chief Justice of India Dipak Misra, was reacting to a submission by senior advocate Arvind Datar, for hotelier Keshav Suri, that the right to sexual orientation was meaningless without the right to choose a partner.

Justice Chandrachud drew his observation from the March 2018 judgment in the Hadiya case, which held that neither the State nor one’s parents can influence an adult’s choice of partner. That would be a violation of the fundamental right to privacy. Hadiya, a Hindu girl from Kerala, converted to Islam and chose to marry a Muslim man.

The Constitution Bench, also comprising Justices R.F. Nariman, A.M. Khanwilkar and Indu Malhotra, is re-visiting the December 2013 verdict of the Supreme Court in the Suresh Koushal case, which had upheld Section 377. It had dismissed the LGBT community as a negligible part of the population, while denying them the right of choice and sexual orientation.

Senior advocate Mukul Rohatgi, for renowned choreographer Navtej Singh Johar, submitted that being gay or lesbian was not a matter of choice. “It is innate, inborn. Actually has something to do with the genes.”

Mr. Rohatgi said Section 377 described such sexual acts as against the order of nature. “But this [being LGBT] is also an order of nature… because it is nature which gave them this,” he said. “Everything changes with the passage of time… Laws made 50 years ago can become invalid over time,” Mr.Rohatgi submitted.

He said Section 377 falls under the section of “unnatural offences” in the IPC. “What is unnatural? It can be between a man and man and also between a man and a woman. Sex even between a man and woman, but not in the conventional way, also becomes unnatural under Section 377,” he said.

Justice Nariman said Mr. Rohatgi should focus on the point that the “order of nature” was only a relative concept and whether LGBT itself was an order of nature.

Mr. Datar took the Bench through history, explaining how people’s view of homosexuality changed from pathological prejudice to acceptance as a normal and benign variation of human sexuality.

Here, Justice Malhotra, the woman judge on the Bench, observed that homosexuality was not confined to humans, but extended even to the animal kingdom. Mr. Datar said 377 IPC criminalises a section of people for being a sexual minority.

At one point, the judges on the Bench mooted various means to approach the case. Justice Chandrachud said the court should not confine itself to a declaration on whether Section 377 was constitutional or not. It should go beyond the topic of sexual orientation and examine the wider concept of “sexuality” to include co-habitation, etc.

But Chief Justice Misra observed that the Bench should first decide the constitutionality of Section 377. “The question here is whether Section 377 is ultra vires of the Constitution. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge.”

To this, Mr. Rohatgi pleaded that “our lives are passing by… how many of us can come on individual issues later on?”

Mr. Rohatgi noted that the 172nd Law Commission Report had recommended the deletion of Section 377. But nothing had been done all these years.

He said, though it was silent, the government had never supported Section 377. The Centre had not appealed in the Supreme Court against the historic Delhi High Court judgment of 2010 which had protected the LGBT community from Section 377. In fact, it was the Centre which filed the review petition against the apex court judgment of December 2013.

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