New Delhi: The Supreme court will resume hearing on the petitions filed against Section 377 of the Indian Penal Code (IPC), which criminalises homosexual activities, on July 17.
On Wednesday, the Centre told the apex court that it would leave it to the wisdom of its judges to decide the constitutional validity of Section 377. The notion was put forth by Additional Solicitor General Tushar Mehta, who is representing the Centre before the five-judge constitution bench of the top court, as it hearing of pleas on Section 377 of the Indian Penal Code gets underway.
Highlights of SC hearing on Thursday:
SC concludes the hearing for the day, intervenors will be heard for an hour on Tuesday next week.
This is not a lis between two parties. IPC falls under concurrent list. If any of the States wanted to amend it, they would have done so. They have not, says George. CJI Dipak Misra states, "That does not mean its Constitutionality cannot be challenged."
LGBTQ's existence is part of the culture Lawyer Ashok Desai appearing for one of the petitioners told LGBTQ's existence is part of the culture and many countries have been accepted homosexuality.
Advocate George who is appearing for two Christian associations supporting Section 377 said no senior to hold a brief for my side, maybe because of the issue involved. "There was a U-turn by govt which causes serious concerns for the public at large", he said.
'We don't decide Constitutional issues by referendum' CJI Dipak Misra said to another counsel who tried to make arguments based on "popular opinion"
'Stick to the Constitutionality of the provision' Advocate Mehta urge Court to Stick to the Constitutionality of the provision and said persons with different perceptions look at things differently.
Stigma related to LGBT community will go if decriminalisation occurs The five-judge panel stated, "Once the criminality (under section 377) goes, then everything will go (all the bars, social stigma and others)."
'Government providing help to LGBT community' Advocate Tushar Mehta, who is representing the Centre, says that the Indian government is 'providing options for the LGBT community to get help.'
'LGBT community living in fear' Chief Justice of India Dipak Misra observes that the LGBT community face stigma because of criminality attached to their sexual orientation. Justice Indu Malhotra states, "Because of family and societal pressures, the LGBT community are forced to marry the opposite sex and it leads to bi-sexuality and mental trauma." Justice Chandrachud replies, "There is deep rooted trauma involved in the society, which forces the LGBT community to be in fear. We created a society that discriminates LGBT."
Domestic Violence Act only applies to heterosexual marriages Chief Justice of India Dipak Misra asks whether there is any law, regulation or by-law that disqualifies homosexuals. Menaka Guruswamy replies that no such law exists, but the Domestic Violence Act applies only to heterosexual marriage.
'Even England has abolished it' Advocate Ashok Desai urges the apex court to recognize the concept of fraternity as the LGBT community is humiliated very terribly. Since Section 377 is a British law, he adds, "Even England has abolished it. In fact they rather apologised."
Supreme Court resumes hearing on the third day.
On the second day of the hearing, the Central government said it was leaving the decision to the 'wisdom of the Supreme Court.'
However, the five-judge constitution bench of Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra reiterated that they would confine the hearing solely on decriminalising Section 377 and not civil rights including right to property, inheritance marriage, adoption and other rights.
Justice Chandrachud observed that Section 377 had a chilling effect not only on public services but also in private employmentas Guruswamy told the court about a person who after clearing the IAS did not join it out of the fear of stigma. Chief Justice Misra said that the "ancillary disqualification"- the consequences flowing for such relationship which is seen as a moral turpitude - including joining services, and contesting elections would go once court decides on the validity of Section 377. Highlights from the hearing:
Technically Section 377 criminalises certain acts only but in its application, it is not used against consenting sexual acts between heterosexual adults but is used against LGBT community, Shyam Divan.
Lawyer for a petitioner, Janya Kothari submitted to the court that how Section 377 impacts the lives of transgenders is to be seen and considered.
Chief Justice of India Dipak Misra reiterates that any disqualification based on Section 377 will be automatically lifted once the court declares it unconstitutional.
Advocate Menaka Guruswamy reads out a statement of the Indian psychiatric society. It says homosexuality is not a psychiatric disorder and same sex is a normal variant. The society has favoured decriminalisation of 377.
Tushar Mehta, representing the Union of India states that the government will not contest and will leave the issue of Section 377 to the apex court's wisdom.
Justice Chandrachud states that the right to sexual orientation is not a fundamental right,but the right to choose one's sexual partner is.
Chief Justice of India Dipak Misra clarifies that the scope of this hearing does not cover marriage, adoption, and maintenance etc.
Justice Chandrachud says section 377 applies even to anal sex between man and woman, since it applies to any intercourse that is not penal-vaginal; in that respect strict classification is not there.
CJI Dipak Misra emphasises that most of all, petitioners will have to show how Section377 is unconstitutional and against fundamental rights.
Chief Justice of India Dipak Misra says,"Even if a law is presumed to be constitutional, it does not automatically become constitutional."
Justice Chandrachud says the Right to Sexual Orientation is a part of the larger rights
Discussing Article 375, Rohatgi observes,"Rape has several descriptions - important to note, that this is all non consensual between man and woman. Therefore consensual will not be a part of 376 and shall accordingly will not be a part of 377."
"Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people."
Addressing the five-judge bench, senior advocate Mukul Rohatgi said, "SC being the protector of fundamental rights has the duty to protect the LGBTQ community."
Section 377 of the Indian Penal Code 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."
In other words, Section 377 is an archaic law that was introduced during the British era in 1860s that criminalises gay sex, for which, punishment can be a life term.
Currently, consensual sex between adults (oral and anal sex in private) are treated as unnatural. Hence, offenders are punishable under this section of the IPC.
2009: Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution.
2013: Supreme Court cancelled the Delhi High Court order and re-criminalised homosexuality.