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Sunday, July 22, 2018

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

Supreme Court hearing on IPC Section 377: The hearing on scrapping Section 377 that prescribes a life term in jail for gay sex will continue in the Supreme Court on Wednesday.

By: Express Web Desk | New Delhi | Updated: July 11, 2018 5:29:27 pm
A five-judge bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra will continue to hearing petitions today on Section 377. (Express photo by Kevin Dsouza/Representational)

Supreme Court hearing on IPC Section 377: The Supreme Court on Wednesday continued hearing a clutch of pleas challenging Section 377 of the Indian Penal Code that criminalises homosexuality. The Centre, which had sought four weeks time to file its response to the petitions, told the court today that it would not contest criminalisation of same-sex relations, adding that it leaves the decision to the ‘wisdom of court’.

On Tuesday, a five-judge Constitutional bench headed by Chief Justice Dipak Misra said it will examine the correctness of its 2013 verdict that had set aside a Delhi High Court order which had decriminalised gay sex.

READ | Centre takes no stand on consensual gay sex

During the course of day-long arguments on Tuesday, the court also made it 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. The bench also comprises of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Live Blog

Supreme Court is hearing petitions challenging Section 377 that criminalises homosexuality. Here are the highlights. Read this article in Hindi.

16:53 (IST) 11 Jul 2018
Hearing on Section 377 concludes for the day

The Constitutional bench, headed by CJI Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, concludes hearing for the day into the Section 377 case. Hearing to continue tomorrow.

15:31 (IST) 11 Jul 2018
Section 377 case is about how SC can change social morality to Constitutional morality, says petitioner's advocate

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.

14:44 (IST) 11 Jul 2018
CJI Dipak Misra expresses views on Article 19

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.

14:36 (IST) 11 Jul 2018
Section 377 violates right to form association under Article 19, say petitioners

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."

13:03 (IST) 11 Jul 2018

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.

12:50 (IST) 11 Jul 2018
Section 377 denies LGBT community equal opportunity of participation: Petitioner

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'

12:20 (IST) 11 Jul 2018

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

12:17 (IST) 11 Jul 2018
Section 377 discriminates on the basis of gender of the partner: Petitioner

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. 

12:07 (IST) 11 Jul 2018
If Section 377 declared unconstitutional, no other issues to be considered: Centre
12:02 (IST) 11 Jul 2018
Sex just one aspect of the relationship: Justice D Y Chandrachud

"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.

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11:49 (IST) 11 Jul 2018
On consensual sex, Centre leaves decision to 'wisdom of court'

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

11:35 (IST) 11 Jul 2018
Hearing to resume any minute now

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?

10:04 (IST) 11 Jul 2018
Where homosexuality is legal, where a crime

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

09:52 (IST) 11 Jul 2018
SC to limit hearing on validity of Section 377

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.

09:44 (IST) 11 Jul 2018
Choice of same sex partner a 'normal and benign variation of sexuality': petitioner

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”.

09:33 (IST) 11 Jul 2018
Sexual orientation essential part of right to privacy, argue petitioners

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.”

09:05 (IST) 11 Jul 2018
Section 377 was product of Victorian-era morality

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.

08:19 (IST) 11 Jul 2018
Hearing to continue today

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. 

18:16 (IST) 10 Jul 2018
Journalist Sunil Mehra, chef Ritu Dalmia, Hotelier Aman nath are among others who have filed petitions

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

16:00 (IST) 10 Jul 2018
Hearing to continue tomorrow at SC

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

15:06 (IST) 10 Jul 2018
Petitioner: "The SC judgement on privacy said sexual orientation essential attribute of privacy"

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."

15:00 (IST) 10 Jul 2018
Petitioner says person with a different sexual orientation can't be treated as a crime

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.

14:14 (IST) 10 Jul 2018
Hearing resumes

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

14:05 (IST) 10 Jul 2018
Recap of SC hearing this morning

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

13:40 (IST) 10 Jul 2018

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

13:27 (IST) 10 Jul 2018
Who are the petitioners in the case?

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.

13:12 (IST) 10 Jul 2018
'Only 0.3% of population is homosexual'

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.

13:05 (IST) 10 Jul 2018
'Section 377 violates right to sexuality, privacy, dignity'

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)

12:54 (IST) 10 Jul 2018
Is sexual freedom fundamental to right to life?

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. 

12:35 (IST) 10 Jul 2018
Rohatgi for petitioners: 'As society changes, values change'

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.

12:28 (IST) 10 Jul 2018
Just tuning in? Here's what is happening in court

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.

12:14 (IST) 10 Jul 2018
Side note: Criminalisation of homosexuality was first imposed by the British in 1860

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.”

12:12 (IST) 10 Jul 2018
Rohatgi for petitioners: 'Sec 377 was result of Victorian morality'

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

11:56 (IST) 10 Jul 2018
Rohatgi for petitioners: 'Provision has led to society looking at sexual minorities with aversion'

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.

11:53 (IST) 10 Jul 2018
Centre to file its response during hearing

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."

11:10 (IST) 10 Jul 2018
Constitution bench assembles for 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.

11:07 (IST) 10 Jul 2018
SC refuses to delay hearing

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."

10:27 (IST) 10 Jul 2018
Hearing on Sec 377 in top court today

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.

Members and supporters of the LGBTQ group hold a rally in New Delhi (Express Photo/Abhinav Saha/File)

In 2009, the Delhi High Court had decriminalised homosexuality between consenting adults. The HC had stated that Section 377 was in violation of Articles 21, 14,and 15 of the Constitution. A two-judge bench observed, "As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution."

In 2012, this order was set aside by the Supreme Court, which found it "legally unsustainable". The apex court left it to Parliament to consider deleting the provision.

In August 2017, the SC, which was hearing a review petition, directed a larger Constitution bench to hear the case again. This hearing begins today.

Section 377 deals with “unnatural offences,” and holds “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.”