NEW DELHI: The gay and transgender community formed a minority and their right to sexual orientation should be declared a fundamental right, former Attorney General Mukul Rohatgi told the Supreme Court today.
Rohatgi, appearing for petitioner and dancer Navtej Jauhar, told a five-judge constitution bench headed by Chief Justice Dipak Misra that the rights of the sexual minority needed to be protected.
He also submitted that the scope of the hearing should not be restricted to the validity of section 377 of the IPC only as there are a host of other issues which needed to be dealt with.
The court, however, made clear that it would not venture into the issue of marriage relating to the LGBTQ (lesbian, gay, bisexual, transgender and queer) community or inheritance in live-in relationships.
"My life as a sexual minority has to be protected. Do not restrict this hearing to just Section 377 of the IPC.Our lives are passing by how many of us can come on individual issues later," the senior lawyer asked.
Rohatgi said he wanted a "declaration" from the apex court that the rights of those who formed sexual minority are protected under Article 21 (right to life and liberty) and the first issue would be to test the correctness of the 2013 judgement.
The LGBTQ community members have been facing persecution and loss of employment, as the society looked at them differently mainly because of the 158-year-old law, he said.
"The LGBTQ community members are equal to other members of society but have a different sexual orientation, which is not a matter of personal choice but an orientation that one is born with," he said.
Gender and sexual orientation are different and the fact that one was gay or lesbian was not a matter of choice as a person was born with it, he said, adding that they cannot be denied their fundamental rights.
He referred to various judgements including the Delhi HC verdict on homosexuality, the NALSA judgment on the rights of LGBT community and the nine-judge decision which declared right to privacy as fundamental right.
The nine-judge bench had held that decisional autonomy was part of the right to privacy and moreover, six, out of nine judges, had ripped apart the 2013 apex court verdict re-criminalising consensual gay sex.
"Justice Chandrachud's (privacy) judgment condemning the 2013 verdict which had upheld section 377 of the IPC is the main decision.If so, I am already home and dry," Rohatgi said.
Another senior lawyer Arvind Datar, appearing for a petitioner Keshav Suri, said if transgenders have been granted equal protection under the Constitution, the same should apply to members of the LGBTQ community as sexual orientation was a natural condition which cannot be changed.
Sexual orientation of people of the same sex was an inseparable part of human life, he said.
It was argued before the bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, that section 377 bars a person's right to choose his sexual partner and was therefore, violating Article 21 of the Constitution.
"A fundamental facet of the right to life is the right to choose one's partner. Section 377 effectively bars such choice and results in denial of this most fundamental facet of Article 21 on the untenable ground that it is against the 'order of nature'," Datar said, adding that section 377 was a classic example of class legislation which is prohibited under Article 14 of the Constitution.
"All persons having sexual orientation towards the same sex are treated as a class who are liable to be punished up to life imprisonment or ten years.A human being's natural orientation is made a crime, they are subjected to serious repercussions which includes matters of public employment," he argued.
He also said that the apex court in its judgement in NALSA case had recognised that gender identity was a matter of choice and an inseparable part of human life and therefore, sexual orientation should also be considered in the same manner.
"When transgenders have been granted equal protection under Article 14, there is no justification in denying the same to persons who have a sexual orientation towards people of the same sex," he added.