SC on Section 377: The five-judge bench headed by CJI Dipak Misra also comprises of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
A Supreme Court bench on Tuesday reserved its judgment in the hearing on pleas questioning the validity of Section 377. Last week, the Centre told the five-judge bench that it would not take a stand on the criminalisation of same-sex relations, adding that it leaves the decision to the ‘wisdom of court’.
During the previous hearings, the petitioner argued that the provision — intercourse against the order of nature — is an outcome of Victorian morality and should be struck down as values change along with society. The apex court also added that the hearing pertains only to the issue of gay sex and 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.
The five-judge bench headed by CJI Dipak Misra also comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
Highlights
The Supreme Court on Tuesday reserved the verdict on pleas challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalises consensual gay sex. The verdict was reserved by a five-judge constitutional bench headed by Chief Justice Dipak Misra after four days of hearing. The verdict is likely to come before the tenure of CJI Misra expires, which is ending on October 2.
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Defending his case, Senior Advocate K Radhakrishnan said, "Our point is there is an abuse of the organ, apart from the assigned function, and it’s an affront to dignity."
Senior Adv K Radhakrishnan speaking for the Trust God Ministries said, "Homosexuals spread diseases like AIDS." Justice Chandrachud responded to this, saying, "Migrant workers also spread HIV. So by your logic all sexual intercourse will have to be banned, even heterosexual."
Bench re-assembles after lunch, hearing resumes. This is the day 4 of the apex court's hearing. In its last hearing, the court had indicated that it would conclude hearing today
The bench rises for lunch. The hearing will continue after 2 pm
During the course of the hearing, Justice DY Chandrachud also said that it was wrong to assume that the LGBTQ community contributes to the spread of diseases. Citing the example of South Africa where leadership had refused to accept international aid for HIV, the judge said the court had overturned the decision helping the citizens of the country. 'It is the suppression that is the problem.'
"Consent is the fulcrum of every relation. One person enjoyment of rights cannot offend the dignity of others," CJI Dipak Misra observed during the hearing
During the arguments, George submitted a study prepared by a Washington based organisation that states that sexual orientation is not by birth. 'Idea that people are born with a sexual orientation is not supported by scientific evidence', George said, quoting from the report, Bar & Bench reported. He also said that the constitutional validity of Section 377 should be left to the Parliament.
Justice R F Nariman in response said, “The moment we are convinced there is a violation of any fundamental right, we cannot leave it to the legislature”. 'The whole object of the fundamental rights chapter is to empower courts to strike down laws which majoritarian governments may not be able to do because of vote bank or other concerns,' he added.
The Supreme Court is the proper guardian of the rights of minorities like the LGBT community — in Parliament, majoritarian opinion may prevail. Besides, the validity of Section 377 is a question of right and wrong, which is best addressed legally. Looking back, Section 377 should have been automatically rendered void by the recognition of the right to privacy, since sexuality is a private issue. Looking ahead, it will raise a host of questions relating to parenting and adoption, housing, military service, employment and inheritance. Following decriminalisation, denial or restriction in such matters would invite legal action, since the right to equal access would be violated. Though the Supreme Court has declined to examine these while dealing with the present set of petitions, the judiciary will eventually have to ponder them, even if Parliament legislates in the interim.
For the present, Chief Justice of India Dipak Misra has observed that the court only needs to be persuaded that “if Section 377 were legislated today, it would be struck down for violating fundamental rights”. That is hardly difficult, and it is high time that India, which is clubbed with nations like Saudi Arabia and Somalia for criminalising same-sex relationships, may be freed of a shameful legacy of the Empire. Read more
Advocate Manoj George, appearing for two Christian organisations begins submissions. Adding that the courts shouldn't add or delete words to the statute that is not expressly provided, George is taking the Court through the text of Section 377 IPC. It makes the following classification: Carnal intercourse within the order of nature and Carnal intercourse against the order of nature. "This is a reasonable classification with an intelligible differentia," George said, Bar & Bench reported
The hearing on the validity of Section 377 resumed in Supreme Court on Tuesday. This is the day 4 of the apex court's hearing. In its last hearing, the court had indicated that it would conclude hearing today
The Indian Express talks to the lawyers and petitioner challenging 377 which, among other things, criminalises consensual homosexual sex. First, Danish Sheik, a queer rights lawyer, theatre practitioner and assistant professor joins us to detail what legal aspects are being brought up in court. Next, Debottam Saha, who is one of the petitioners, talks to us about why there is a need for legal recourse and what repealing 377 would do for the community. Last, the All India Muslim Personal Law Board (AIMPLB) has decided not to contest if the Supreme Court scraps Section 377 of the Indian Penal Code. Listen here
The LGBTQ community is hopeful of change after the top court in its hearing last week said that all the discrimination against the community will be gone once Section 377 is declared unconstitutional. The court also made it clear that it would decide on the validity of the provision on the basis of constitutional morality and not the majoritarian morality.
In a nearly nine-hour-long arguments spread over three days, the different petitioners and interveners represented by the senior counsel Ashok Desai, Krishnan Venugopal and others assailed the validity of Section 377 on the grounds of its being violative of fundamental rights guaranteeing equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, freedom of speech and expression and protection of life and personal liberty.
(With inputs from IANS)
Section 377 was introduced by British India, modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. Over the years, Section 377 had sparked numerous controversies with activists challenging it in various ways. In a landmark decision, the Delhi High Court in 2009 decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.
After HC’s judgment, various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law. In December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising Justice G S Singhvi and Justice S J Mukhopadhaya observed that the HC had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section. The Supreme Court then recommended that the Parliament address the matter because only they had the power to amend the existing laws.
The Supreme Court began hearing the case after five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur challenging the validity of Section 377. Read more
Section 377 of the IPC was introduced by the British in 1861. It criminalises sexual activities against the "order of nature" and the ambit of this law extends to any sexual union involving penile insertion. The law reads: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Read more
Welcome to the live blog. The Constitution Bench hearing in the challenge to Section 377 has entered its second week. Follow this space to track the latest developments from the apex court