India's top court which began hearing arguments challenging the constitutionality of the country's colonial-era law that bans homosexuality Tuesday affirmed that choosing a partner was a person's fundamental right, including the same-sex partner, Justice D.Y. Chandrachud, one of the presiding judges on the case said, adding that neither the state nor one’s parents can influence an adult’s choice of partner.
Justice D.Y. Chandrachud who is part of the five-judge bench led by Chief Justice of India Dipak Misra, made the comments during the second day of the hearing.
“Our focus is not only on the sexual act, but the relationship between two consenting adults and the manifestation of their rights under Articles 14 and 21…we are dwelling on the nature of relationship and not marriage…we want the relationship to be protected under Fundamental Rights and to not suffer moral policing," Chandrachud pointed out on the second day of the hearing, Live Law reported.
According to an Indian daily, The Hindu, a senior advocate Mukul Rohatgi, submitted an argument that being gay or lesbian is not a choice. "It is innate, inborn. Actually has something to do with the genes," the senior lawyer appearing for the lead petitioner, told the bench of five judges, according to Reuters.
In 2013, India squashed major gains won by LGBT activists by reversing the ruling which had decriminalized gay sex four years earlier.
The Indian homosexuality law, 'Section 377,' which falls under the section of "unnatural offenses" in the Indian Penal Code, IPC, bans "carnal intercourse against the order of nature with any man, woman or animal" that is widely interpreted as a reference to homosexual sex.
"What is unnatural?" Rohatgi pointed out. " 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.
"As society changes, values change," Rohatgi said, according to Reuters. "What was moral 160 years ago might not be moral today."
“Section 377 perpetuates discrimination on the basis of sexual orientation denying equal access to sexual minorities to education, job, healthcare,” Senior lawyer Shyam Divan, appearing for the Voices Against 377 told the bench Wednesday, according to Scroll.in. “The Act creates second-class citizens. LGBTQ people are forced to go invisible and underground, depriving them of freedom of expression.”
Gay rights activists have slammed the right-wing Hindu nationalist ruling government for not doing enough to combat homophobia.
Subramanian Swamy, a lawmaker from Prime Minister Narendra Modi’s Bhartiya Janta Party, BJP, said homosexuality was unnatural and against Hindu nationalism, per a video from news agency ANI.
Advocate Menaka Guruswamy representing 350 LGBTQ Indian Institute of Technology graduates, said Section 377, a colonial legacy, has a chilling effect on India's youth.
"These young people need to be unafraid to love and be loved, and they should be protected by this Court," she told the court Wednesday.
"Judges have been talking with sensitivity about this issue. I really liked it and I’m hopeful about it," Anurag Kalia, a petitioner in the case, outside the courtroom, told Reuters. "We really expect that when this (law) is struck down, we will get equal rights and a better way to live our life, with dignity."
As India mulls over the homophobic law, the United Kingdom, the former colonial power, made gay sex legal in 1967.