The hearings on Section 377 concluded on Tuesday, and the Supreme Court has reserved its judgment until further notice. While we wait for the decision, it’s a great time to take stock of everything that’s happened.
We had 10 top advocates testify against the unjust law that would sentence a person to life imprisonment, simply because of their sexual orientation. To this writer, it was all very sombre . Until I heard the defense arguments.
If the counsel for any of the petitioners in the case of Suresh Kumar Koushal vs Naz Foundation argued brilliantly, then the respondents’ counsel, in comparison, were pretty embarrassing.
I’ve spent a week reading a trashy Sidney Sheldon novel about a criminal lawyer who saved the skins of many awful people, and she does it with some astounding arguments. Maybe that’s why I thought Koushal’s lawyers might present strong reasons to retain Section 377. But all I got was this:
Advocate Manoj George tries submitting, not once, but twice, material to suggest that ‘the gays’ are the scourge of our society. According to Bar and Bench’s live updates on Twitter, he first tried to show the nine-judge bench some stuff from the interwebz that would convince them to jail all of us debauched and immoral freakazoids.
Justice Chandrachud replied: “The second website you have referred to is obviously a hate website. Look at its name.”
Not to be deterred, George tried his next line of attack. Some ‘scientific’ research published by a Washington-based organisation, that claims homosexuality isn’t innate, but a pervert’s choice.
Sorry, man, what did you say? I couldn’t hear you over my boombox that’s blasting Gaga’s “Born This Way”.
But wait, there’s more. Additional Solicitor General Tushar Mehta tried to tear into Ashok Desai (appearing for the petitioners) when he submitted to the court two books (“I Am Divine” by Devdutt Pattanaik, and “Same Sex Love in India” by Ruth Vanita). Get this, he called the books “obscene” and “scandalous”, and then dropped a loaded comment about how people perceive things according to their orientation.
I’m prone to quoting Hannah Gadsby a lot these days. Sue me, lol. But that’s pretty much where the next arguments lead to.
Advocate K. S. Radhakrishnan told the court that Section 377 a much needed bastion against HIV/AIDS in India. He brought to the court a report that claimed homosexuality had spread AIDS all over the USA.
Here’s what international organisation AVERT has to say about that: “Homophobia continues to be a major barrier to ending the global AIDS epidemic.”
In fact, the whole reason the Naz Foundation first petitioned against Section 377 in 2001 was because it interfered with HIV/AIDS prevention and treatment!
Still, Radhakrishnan said that, without the statute, “India will lose nobility, character, virtuousness.”
The judges weren’t very convinced.
When it was advocate Harshvir Pratap Sharma’s turn, he churned out perhaps the most bizarre argument of all time. According to Bar and Bench’s updates, he said rapes have increased after live-in relationships were recognised.
Just a moment of silence, as we mourn the death of logic here.
Speaking of live-ins, the respondents’ lawyers quickly got to how ‘the gays’ are destroying The Great Indian Family. You know, the backbone of heteronormativity? Because God forbid a situation where a child must undergo the ‘trauma’ of being raised by two loving mums!
In the days prior, advocate Menaka Guruswamy asked the court to consider that the term “sex” should include “sexual orientation” too. Manoj George insisted that a new definition could not be imported into Section 377. But Justice Rohinton Nariman had a totally different take. He spoke about the Yogyakarta principles, and that “sex” had been expanded to include trans people in NALSA judgment.
Mehta also had some feelings about this, saying that trans issue were being brought in unnecessarily. He pointed to the text of Section 377, saying “carnal” does not mean “sexual”. In the same vein, he argued that the petitioners’ arguments were based on too wide reading of Fundamental Rights, and were therefore violating Directive Principles of State Policy.
In comparison, Radhakrishnan’s defense was pretty Switzerlandy. According to him, we’ve been reading Section 377 all wrong this whole time, because ain’t nobody got problems with gay people, they just shouldn’t be having any sexy times, cause like society will burn to the ground or whatever. But advocate Arvind Datar had already argued otherwise, saying it was the basis for blackmail, extortion and all kinds of harassment against LGBTQ people.
Okay, here we go again. Sharma suggested to the court that you can’t justify scrapping a law that affects only a few people. And the analogy he used had me choking on my damn rainbow velvet cake. He asked the court if it would consider abolishing the police, because of corruption inside the institution?
He’s falling back on his previous sentiment that even Fundamental Rights are subject to public health, morality and decency.
In his turn, Mehta suggested that all of us gays and activists are just using ‘consensual same-sex relations between adults’ as a guise for incest, bestiality, or Sapinda (marriage between cousins in the Hindu community).
He also tried to dehumanise us by saying homosexuality was only seen in lower classes of animals, and that since he represented 95% of the population (i.e. The Straights), we simply didn’t matter.
He also concluded with this incredibly impressive sentiment: “No one has a right to commit a crime.”
To that, I have only one response. Which I’m gonna steal from Sahil Rizwan on Twitter:
“it’s 2018 grandpa we eat ass now” https://t.co/amFr5vA5ar
— Sahil Rizwan (@SahilRiz) July 12, 2018