A five-judge constitutional bench, comprising of Chief Justice Dipak Misra, Justice RF Nariman, Justice Khanwilkar, Justice DY. Chandrachud & Justice Indu Malhotra began hearing the Section 377 case on July 10th. As the day began, one of the lawyers wanted the court to tag the curative petition along with the current petitions. The bench refused, but said that the petitioner could file an intervention petition.
Senior advocate Mukul Rohtagi, who is appearing on behalf of Navtej Johar, began the arguments by stating that rights of all individuals are protected under Article 21 of the Indian Constitution, and the primary question before the court is the correctness of the existing judgement. He then mentioned that Section 377 mentions “order of nature” and asked what was this order? It was basically Victorian principles of 1860. He mentioned that the Indian order was much older, and pointed to the tale of Shikhandi in Mahabharat. Justice Nariman then asked: “This order itself is natural, is that your point?”
Advocated Rohtagi also questioned if a pre-constitutional law that was not framed by Indian Parliament, and that does not recognise the rights of Indians, can remain on the statute books. He also pointed out that the Governement of India(GoI) had not opposed the Delhi High Court Naz verdict of 2009. To this the Additional Solicitor General Tushar Mehta, who is representing the GoI, said that the current government’s stand is not clear yet and they are yet to file a reply. Advocate Rohtagi also said that the current case will go beyond 377 as legal status of same-sex relationships is unclear. To this ASG Mehta objected and said that the case should only be restricted to Section 377. The bench agreed on this. Advocate Rohtagi read out various paasages of the Naz judgement and stressed on it.
After lunch, advocate Arvind Datar, representing hotelier Keshav Suri, presented his arguments. He apprised the court of the various countries that have changed laws relating to homosexuality, and said that Section 377 was imposed on India and that it crimilaises a class of people. He also quoted extensively from the Privacy judgement. He stresses that sexual orientation is innate and hence cannot be criminalised. Justice Chandrachud commented that right to chose a partner comes under Article 21, as held in the Hadiya judgement. Datar also read out various international judgements related to homosexuality.