To this, senior advocate Mukul Rohatgi, for renowned choreographer Navtej Singh Johar, said “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 deletion of Section 377. But nothing had been done all these years.
He said the government did not support Section 377. This was “clear as daylight” from the fact that it did not appeal 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.
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, it 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.
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 Section 377 criminalises a section of people for being a sexual minority.
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 virtually denying them the right of choice and sexual orientation.
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