SC hearing on Section 377 highlights: Law violates right to form association under Article 19, say petitioners

Advocate Menaka Guruswamy argues that LGBT people are denied many benefits that, otherwise, one can avail as an association, Bar and Bench reported. "LGBT persons are unable to form an association as they have to identify themselves as LGBT. This means they are denied many benefits which they can otherwise avail as an association," Guruswamy said before the SC bench. She further says, "This is not simply a reference to larger Bench, this is for Constitutional interpretation under Article 145(3)." The advocate says the case is about how the apex court can change social morality to Constitutional morality. With this Guruswamy concludes her argument as Anand Grover takes over.

To the argument regarding the right to form an association under Article 19, CJI Dipak Misra says "any disqualification linked to Section 377 will be automatically lifted if provision is struck down," according to Bar and Bench.

The hearing into the validity of IPC Section 377 resumes as the Constitutional bench, headed by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, re-assemble after the lunch break. According to Bar and Bench, advocate Menaka Guruswamy, appearing for the petitioners, contended that Section 377 violated right to form an association under Article 19. Objecting to the statement, ASG Tushar Mehta said the issue was beyond the scope of this hearing. To this, Justice Nariman said, "She (Guruswamy) has a right to argue, you can respond if you want."

The Constitution Bench of the Supreme Court has gone for the lunch and the hearing on the pleas seeking scrapping of Section 377 of IPC will resume at 2 pm.

Guruswamy submitted to the Supreme Court that 'lesbian, gay, bisexual and transgender people deserve to be protected by court, constitution and country. Section 377 denies the LGBT community the equal opportunity of participation'

The Home Ministry has filed an affidavit elucidating the Centre's position of leaving the decision to the "wisdom of the court."

According to Bar & Bench, Menaka Guruswamy has begun the arguments for the petiotioners. "Section 377 violates Articles 15, 19, 21 of the Constitution. It discriminates on the basis of the gender of the partners," she said in the apex court. Guruswamy is appearing for IIT students and alumni. 

The centre also prayed that if Court declares Section 377 viz. “consensual acts of adults in private”, unconstitutional, “no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.” @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 11, 2018

"I state and submit that so far as the constitutional validity Section 377 to the extent it applies to “consensual acts of adults in private” is concerned,the Union of India would leave the said question to the wisdom of this Hon’ble Court," the Centre's affidavit read.

Justice D Y Chandrachud says that the sexual act is only one aspect of the relationship and there is lot more to it than just sex @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 11, 2018

On criminalisation of same-sex relations, Centre leaves decision to 'wisdom of court'

Challenge to #Sec377IPC criminalising same sex relations: Centre leaves decision to the “wisdom of the court”. CJI Dipak Misra points out “it means you are not contesting” @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 11, 2018

The hearing is about to begin. The judges will assemble to for Day 2 of the SC hearing on Section 377 of the IPC. To know what Section 377 is about, a history of the provision that dates back to 1861 and more, read our explainer: What is Section 377 of IPC?

India is one of 72 countries in which homosexuality is a criminal offence, according to an international count last updated in October 2017. Eight countries provide for the death sentence, while five more countries technically have that provision — under interpretation of the Sharia — but are not known to have invoked the provision, according to a map and report by ILGA (International Lesbian, Gay, Bisexual, Trans and Intersex Association), a worldwide federation of 1,200 member organisations from 132 countries. Read more

Additional Solicitor General Tushar Mehta, appearing for the Centre said the petitioners must confine to the Constitutionality of section 377 and that the Centre would place its stand during the course of the hearing.

Justice Chandrachud told Mehta that the matter was before a larger bench and restriction of issues was not appropriate. But Mehta would not budge.

Disagreeing with the ASG, Rohatgi said “I can argue for my rights. My life as a sexual minority has to be protected. Do not restrict this hearing to just the validity of Section 377. Our lives are passing by. How many of us can come on individual issues later? I was asking a principle to be laid down to protect my rights under Article 21.”

Intervening, the CJI clarified that the court and parties should confine itself now to the question of Section 377 and will take up the other matter when individual cases come up before it. “The question here is whether Section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now,” CJI Misra said.

Senior advocate Mukul Rohatgi said being a gay or lesbian “is not a matter of choice. It is something which you are born with and you react in a way different from the majority”. Section 377 uses the words order of nature, but this is also an order of nature, he argued.

Datar said that choice of a same sex partner was a “normal and benign variation of sexuality”. At this, Justice Malhotra said homosexuality was present not just in humans, but also in animals.

Justice Nariman told Rohatgi, “you should concentrate on two points – whether the order of nature is a relative concept and whether this itself is the order of nature”.

Senior advocate Arvind Datar, appearing for one of the petitioners, pointed to the August 2017 privacy judgment by a nine-judge Constitution Bench which ruled that sexual orientation was an essential attribute of privacy. Datar said this would be meaningless unless it included the right to choose one’s partner. “The moment (K S) Puttaswamy (privacy judgment) was pronounced, Section 377 was eclipsed and is liable to be struck down,” he said.

Datar said that choice of a same sex partner was a “normal and benign variation of sexuality”. At this, Justice Malhotra said homosexuality was present not just in humans, but also in animals.

At this, Justice Chandrachud said: “We had already held that one’s choice of partner is part of Article 21 (protection of life and personal liberty). So partner would include same sex partner too.”

During the day-long hearing in the court, the bench was told that the law criminalising same-sex relations between consenting adults was a product of Victorian-era morality and deserved to be struck down as “unconstitutional”. “The position of ancient India was different,” senior advocate Mukul Rohatgi appearing for the petitioners said.

The Supreme Court on Wednesday will continue to hear petitions challenging the British-era law that criminalises homosexuality in India. During its hearing on Tuesday, the court had made it clear that it would not wade into the issue of marriage in the LGBT groups or inheritance in their live-in relationships, but will only deal with the question of the validity of Section 377. 

Others who have filed petitions against section 377 are journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur

Hearing in the pleas seeking scrapping of Section 377 to continue tomorrow at the Supreme Court.

Senior advocate Arvind Datar for petitioners: "The SC judgement on privacy said sexual orientation essential attribute of privacy. That eclipses Section 377 IPC and makes it liable to be struck down."

Appearing for a petitioner, Arvind Dattar said if a person has a different sexual orientation, it can’t be treated as a crime. This can't be treated as against the order of nature.

The hearing has resumed post-lunch. Senior advocate Arvind Datar is now arguing for the petitioner.

While the SC is examining whether it is a fundamental right to life to have sexual freedom, here's what the petitioners have argued so far:

* Section 377 was an outcome of Victorian morality in the 1860s
* As society changes, values should also change; what was moral 160 years ago may not be today
* Section 377 has led to society looking at sexual minorities with aversion
* Rohatgi said "our order is much older" (and natural) and gave the example of Shikhandi in Mahabharata
* The issue at hand is only on sexual orientation and has nothing to do with gender
* Rohatgi argued that the Union of India did not file an appeal against the 2009 Delhi judgment

The bench has risen for lunch. Proceedings will resume shortly. 

The Supreme Court is hearing petitions filed by journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. Rohatgi earlier this morning was arguing on behalf of dancer Navtej Jauhar. He also represents NGO Naaz Foundation, which was the first petitioner to approach the Delhi High Court in 2001 on the issue.

In its order in 2012, the Supreme Court, which overturned a Delhi HC order, said it had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBTQ,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section. The government had also argued that only 0.3% of the population is homosexual, and therefore, 99% of the country's population cannot be compromised.

Section 377 has been a point of contention in India. There have been several protests and rallies against the provision in the Indian Penal Code. Petitions by LGBTQ activists claim their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” Here are some pictures from protests across the country.

(Express Photos)

Is sexual freedom fundamental to the right to life? This is what the Supreme Court will decide through this hearing. There are over 20 countries where homosexuality is not a criminal offence, and same-sex marriage is recognised, including the US, England, Australia, Germany and France. 

Rohatgi argues that as society changes, values change as well. We can't say that what was moral 160 years ago remains moral today. He adds that Section 377 violates one's human rights. "The issue deals only with sexual orientation and it has nothing to do with gender," he is quoted as saying by ANI.

In case you're just joining us, the Supreme Court began hearing a batch of petitions challenging Section 377 this morning. The apex court will examine its 2013 verdict in which it had ruled that homosexuality was a criminal offence. A five-judge bench has allowed NGO Naaz Foundation to make its arguments in the cases. Senior Advocate Mukul Rohatgi is arguing.

The criminalisation of homosexuality was first imposed by the British in 1860. It found sexual activities between members of the same sex against the “order of nature”. Section 377 states “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.”

On the definition of Section 377 — intercourse against the order of nature — Rohatgi says this was an outcome of Victorian morality.

Rohatgi terms #Section377 which was put in the statute book of 1860 as an outcome of Victorian morality. Position of ancient India was much different, he says and refers to Shikhandi of Mahabharata & the Khajuraho caves. @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 10, 2018

Senior Advocate Mukul Rohatgi, who appears for the petitioner, says the provision remaining in statute book has led to society looking at "sexual minorities" with aversion and Constitutional morality must override this.

The provision remaining in statute book has led to society looking at “sexual minorities” with aversion and Constitutional morality must override this. If wrong, it must go notwithstanding how society feels about it, says Sr Advocate Mukul Rohatgi for petitioner @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 10, 2018

ASG Tushar Mehta, representing the Center, said its views would be placed before the court during the course of the hearing. On Monday, the apex court had refused to postpone the hearing after the Centre sought additional time, and said, "You file whatever you want during the hearing."

In January, the case was referred to a Constitutional bench. The new five-judge bench is headed by Chief Justice Dipak Misra and comprises justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

ASG Tushar Mehta submits that the views of the Centre will be placed before the court during the course of hearing @IndianExpress

— Ananthakrishnan G (@axidentaljourno) July 10, 2018

The Centre on Monday had requested the court to delay hearing petitions challenging Section 377 and sought more time to file its reply. The bench, however, had refused and stated, "It will not be adjourned... We will go ahead with the scheduled hearing... You file whatever you want during the hearing."

The Supreme Court on Monday refused to delay hearing a clutch of petitions challenging Section 377 of the Indian Penal Code (IPC) that criminalises homosexuality. A five-judge Constitutional bench headed by CJI Dipak Misra, has listed it for today. Follow our LIVE blog as we bring you the latest news from the court.