Same-Sex Partners In India: Not A Crime

Same-Sex Partners In India: Not A Crime

“No one can influence one’s choice of partner other than the individual himself/herself. Neither law nor parents.”

While hearing the multiple petitions against abolishment of Sec377A Justice D.Y. Chandrachud  clarified that a person’s choice of a partner is a fundamental right, and it can include a same-sex partner.

The statement that came on the very first day of the Constitutional Bench hearing, that challenges the colonial era provision that criminalises private consensual sex between adults, ushers in a ray of hope for millions of the LGBT community who are waiting to break free from the shackles that bind them.

Also read about the prequel to this article here.

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.

CJI DipakMisra (top). From L to R: Justices Indu Malhotra, Rohinton F Nariman, A M Khanwilkar, D Y Chanrachud.

Justice Chandrachud’s statement is drawn from the recently set precedent in the Hadiya case wherein Hadiya, a Hindu girl from Kerala, converted to Islam and chose to marry a Muslim man. The judgement in that case 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.

The Constitution bench is revisiting it’s earlier 2013 verdict wherein it had ruled rather arbitrarily that the LGBT community was a negligible part of the population, while denying them their right of choice for a partner and sexual orientation.

Senior advocate Mukul Rohatgi, for renowned choreographer Navtej Singh Johar, submitted that, “Being gay wasn’t a choice or fad. It was innate, inborn and rather genetic. 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.”

Continuing with his submission, Mr. Rohatgi 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.”

To these comments, Justice Nariman surmised that counsel should refrain from debating over the relativity of “order of nature” and should stick to the point of whether LGBT itself was an order of nature.

Mr. Datar then took to history to explain how views over homosexuality had undergone tremendous change over a period of time from pathological prejudice to acceptance as a normal and benign variation of human sexuality.

The only woman judge on the panel Justice Malhotra commented that homosexuality wasn’t just limited to humans but was prevalent in the animal kingdom as well. To this Mr.Datar woefully regretted, “Then why punish a small section of humanity for simply being a sexual minority.”

Ray Of Hope Gets Brighter

There came a point in the hearing when the judges deliberated on whether they should hear the counsels on corollary issues as Justice Chandrachud opined that the court should not just 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.

As the discussion prolonged for a while, the Chief Justice of India Justice Dipak Misra finally vetoed the discussion saying, “The question here is whether Section 377 is ultra vires of the Constitution. Let us get out of this maze first. 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.”

Pat came a repartee from Mr. Rohatgi who pleaded saying “Our lives are passing by… how many of us can come on individual issues later on?”

Mr. Rohatgi even added that the 172nd Law Commission had recommended the removal of Section 377 but nothing had come of it yet. In fact the Centre has always chosen to play it safe by remaining silent on the issue but had not contested the Delhi High Court ruling decriminalising Sec377. It was in fact this very Centre that filed the review petition against the apex court judgment of December 2013.

The deliberations until now seem to be taking a positive turn but a lot many issues apart from Sec377 also need complete resolution before the Indian LGBT+ community breathe easy and freely. What needs to change most of all are mindsets. Unfortunately this, the Supreme Court cannot pass a diktat over.

Written by: Delshad Master

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