Section 377 Supreme Court hearing: Centre defers to 'wisdom of court'; Menaka Guruswamy says IPC section violates Article 15

The Centre has put the onus on Supreme Court to decide on the constitutionality of Section 377 of the Indian Penal Code that criminalises homosexuality in the country. As the five-judge bench of the Supreme Court assembled on the second day to hear arguments for and against scrapping of Section 377, Additional Solicitor-General Tushar Mehta told the bench that the Centre won't contest provision as regards to consensual sex between adults and is leaving it the decision for the Supreme Court. Mehta, however, sought clarification on bestiality.

The ASG further added that the government will have to file detailed reply if the top court goes into other aspects of the IPC section like civil rights and liabilities. "Please do not say anything which can be construed as affecting civil rights, inheritance, marriage rights etc," Mehta urged the Supreme Court.

"Centre chooses not to take a stand and rather leave it to the "wisdom of the Court," ASG Mehta was quoted as saying.

On the second day of Supreme Court hearing, ASG Mehta said "whatever isn't under question may not be touched upon." The Centre has submitted a three-page affidavit to the Supreme Court. Read the Centre's affidavit in the Section 377 matter:

"For the Union of India, the right to choose is a Fundamental right," ASG Mehta was quoted as saying.

At this point, Justice DY Chandrachud intervened and said that the right to sexual orientation is not a fundamental right, but the right to chose one's sexual partner is. "But what if two homosexuals are not indulging in sex but they are still being subject to moral policing?" Chandrachud asked.

Menaka Guruswamy appears for IIT students and alumni

After Suresh Kripal concluded his submissions, Menaka Guruswamy, appearing for IIT students and alumni told the Supreme Court bench that Section 377 violates Articles 15, 19, 21 of the Constitution. "Section 377 is arbitrary and unconstitutional. I will answer the question of Justice Nariman on proportionality," Guruswamy was quoted as saying.

Guruswamy said their prayer is limited to consensual sex between adults and not about incest.

"Argument is simply this," Guruswamy noted, "It (Section 377) is a violation of Article 15 because the discrimination revolves around the sex of the partner. It is based on Victorian morality that people should have sex only with opposite gender since sex is only for procreation." Guruswamy also referred to notification dated 2 July by the Indian Psychiatric Society which states homosexuality is not a pschiatric disorder.

Referring to a Canadian judgment, Guruswamy said, "The Canadian decision was relied upon by Constitutional court of South Africa in National Coalition for Gay and Lesbian Equality to recognise the vulnerability of people due to pre-constitutional morality. When the IIT students/alumni came to me with the case, I was struck by how Section 377 had affected many of their lives
These people deserve to be protected by their court, their Constitution and their country."

"The criminalisation (of Section 377) is based on laws before the dawn of the Constitution. How strongly must we love to withstand the terrible wrongs of Suresh Kumar Koushal. It denies LGBT citizens equal participation in profession. It violates their right to seek employment including state employment and Constitutional offices. This is love that must be constitutionally recognised. It isn't just sex," Guruswamy told the five-judge Supreme Court bench.

CJI Dipak Misra, who is heading the constitutional bench asked, "Are there any rules which prevent homosexuals from availing equal opportunity?"

Guruswamy said, "It has a chilling effect."

Further arguing her case, Guruswamy told the court that the provisions of Section 377 also violates their right to form associations. Sexual minorities can't form associations due to fear of police persecution.

"This case is about a how this court can change social morality to constitutional morality... it is about our humanity" Guruswamy was quoted by Bar and Bench as saying.

Anand Grover, arguing for petitioner Arif Jafar, makes submissions

Further to Guruswamy's arguments, senior advocate Anand Grover said that the question is not just about decriminalising the provisions listed under Section 377, but the spirit of Constitution and what it guarantees. "This case isn't only about decriminalisation of 377. It is about constitutional values. It is about what Preamble to the Constitution says," The Leaflet quoted Grover as saying.

Toon by Manjul.

Toon by Manjul.

Grover then invoked Justice Nariman's judgment in triple talaq case and points out the arbitrariness in the tenets of the said law. Grover said that Section 377 is completely vague and that the clause 'order of nature' used to criminalise homosexuality isn't defined properly, leaving Section 377 overbreadth. On the contrary, he said the

Grover is representing Arif Jafar, who was arrested for distributing condoms among MSM (men who have sex with men) population in Lucknow’s Charbagh area. He along with some others were arrested on the grounds of promoting homosexuality, under section 377.

The Supreme Court bench started hearing petitions on Section 377 on Tuesday. Arguing for lead petitioner Navtej Singh Johar, senior advocate Mukul Rohatgi on Tuesday, said: "Ramifications of this case is not just on sexuality, it will have an impact on how society looks at these people, about perception, about livelihood and jobs for such people."

Rohatgi further told the bench that the issue of sexual orientation and gender are different. "This case deals only with sexual orientation and has nothing to do with gender. We are saying that this is not a matter of choice but it is something innate and we are born with it." "It uses the word 'order of nature'. What is this order? It is the Victorian morals of 1860s," argued Rohatgi, emphasised that ancient Indian order was very different. "Our order is much older," Rohatgi said and pointed to Shikhandi in Mahabharata. "This order itself is natural, is that your point?" Justice Nariman asked.

Senior advocate Mukul Rohtagi appeared for the lead petitioner Navtej Singh Johar while senior advocate Anand Grover represented petitioners Arif Jafar, Ashok Row Kavi and intervenor Naz Foundation. There are six substantive writ petitions along with multiple intervention applications challenging validity of Section 377 of IPC. Here are the details of the cases:

1) Navtej Singh Johar versus Union of India (UOI), WP (Crl) No 76/2016

2) Akkai Padmashali versus Union of India, WP(C) No 572/2016

3) Keshav Suri versus Union of India, WP (Crl) No 88 of 2018

4) Arif Jafar versus Union of India, WP(Crl) No 100/2/18

5) Ashok Row Kavi and others versus Union of India, WP(Crl) No 101/2018

6) Anwesh Pokkuluri versus Union of India, WP (Crl) No 121/2018

With inputs from Bar and Bench and The Leaflet


Updated Date: Jul 11, 2018 20:15 PM

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