Section 377 Supreme Court hearing updates: IPC section eclipsed by privacy verdict, must be struck down, says lawyer

After Datar, Saurav Kirpal begins submissions

After Senior Advocate Arvind Datar’s conclusions, Advocate Saurabh Kripal begins his arguments by citing Lawrence versus Texas case.

Datar concludes his arguments, asks SC to declare nothing is against order of nature

Datar goes on to refer to relevant paragraphs from the concurring opinion of Justice Kaul from the privacy judgement. Datar refers to the last para, 132, of the Delhi High Court judgement in the Naz Foundation case and concludes his arguments with asking the Court to declare that there is nothing against the order of nature.

Arvind Datar reads out passages from privacy verdict

Datar is now reading passages from the privacy judgement, starting off with para 108. Para 108 emphasises the importance of dignity, and should be read with paras 118 and 119. He further refers to paras 144, 145, 248 and 250 of the same verdict. Datar also refers to para 490 of Justice Nariman’s judgement in the privacy matter and says, “Once a right is established, duty is cast upon the Court to protect it”.

Following the privacy judgment, Section 377 is eclipsed: Datar

Section 377 is eclipsed post the privacy judgement and needs to be struck down, argues advocate Arvind Datar. He adds that if the foundation of the law exists no more, there is no reason to continue with it. He goes on to refer to judgements from the European Court Of Human Rights. Datar places reliance on a judgment from Trinidad and Tobago.

He specifically cites the case of Jason Jones vs Attorney General of Trinidad and Tobago which had relied on Puttaswamy judgment of Indian Supreme Court to strike down laws criminalising consensual sex between men.

Right to choose a partner comes under Article 21: Justice Chandrachud

While Arvind Datar says the right to a sexual orientation is part of Article 21, Justice Chandrachud says the right to choose a partner comes under Article 21, as held in the Hadiya judgement. Datar goes onto say the rights of the LGBT community cannot be considered “so called” rights.

Right to choose a partner comes under Article 21: Justice Chandrachud

While Arvind Datar says the right to a sexual orientation is part of Article 21, Justice Chandrachud says the right to choose a partner comes under Article 21, as held in the Hadiya judgement. Datar goes onto say the rights of the LGBT community cannot be considered “so called” rights.

Puttuswamy judgment says privacy encompasses decisional autonomy: Datar

Regarding Article 21, Datar argues that Puttuswamy judgment says privacy encompasses decisional autonomy. It is a natural corollary that sexual orientation is also covered by that. Datar also goes on to cite the SC verdict upon Triple Talaq to make arguments with respect to manifest arbitrariness to declare a statute unconstitutional.

Natural orientation cannot be an offence: Arvind Datar

The object of penal code is to identify an offence and punish for the same so that it acts as a deterrant. But when it is a natural orientation, then how can it be an offence", asks senior Advocate Arvind Datar.

Datar also argues that transgenders have been granted the protection of Article 14 and there is no reason not to extend the same to those having a different sexual orientation.

Section 377 applies even to anal sex between man and woman, says Justice Chandrachud

#Section377: 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. #LGBT #SupremeCourt

— Bar & Bench (@barandbench) July 10, 2018

‘Section 377 criminalises a class of people — to say that it criminalises an act and not a class of people is not correct’

“Is there any judgment of this court that pre-independence laws will not have benefit of presumption of constitutionality,” Chief Justice Dipak Misra asks. “No, no”, says Datar.

Justice Chandrachud says courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, “due to absence of Parliamentary will.” “The fact that Union of India did not choose to appeal against Delhi High Court judgment is all the more reason for it to be struck down.” 

Section 377 criminalises a class of people — to say that it criminalises an act and not a class of people is not correct

Petitioner’s lawyer explains scope of Article 13 of the Indian Constitution to the SC bench

Senior advocate Arvind Datar commences arguments on behalf of petitioner Keshav Suri. In Koushal’s case, Datar said, the Supreme Court held Section 377 to be reflective of the will of Parliament, “which in fact it is not, as it is a pre-constitution era law.” With reference to para 38 of the Koushal judgment, Datar stated that the proposition regarding pre-constitutional laws is wrong, as Section 377 was imposed without being passed by the Parliament.

Bench assembles after lunch

#Section377: Constitution Bench reassembles; hearing resumes. #LGBT #SupremeCourt

— Bar & Bench (@barandbench) July 10, 2018

Argue only Section 377: SC bench tells Mukul Rohatgi

Questions arise on legal status of same sex relationships and such couples. ASG Tushar Mehta says hearing should be confined to Section 377 alone to which Rohatgi retorts, saying, “Who are you to say what we should confine ourselves to.” 

“In such a case we should be allowed to file our response”, says ASG. “Do not restrict it to Section 377, further directions are needed for protection of my life and property,” says Rohatgi.  “First let us get out of this mess of Naz Foundation/ Kaushal,” says CJI Dipak Misra.

Bar and Bench reports that Rohatgi, amid peals of laughter, responded saying, “That is easy for me. The Supreme Court bench tells Rohatgi to stick to arguments related to Section 377 alone.

Issue is orientation: Mukul Rohatgi

“We are not talking about gender. Gay men and gay women don’t call themselves something else, the issue is of orientation”, Mukul Rohatgi argues before 5-judge bench of Supreme Court. Dealing with the Naz Foundation judgment of Delhi High Court, Rohatgi said that the judgment was well researched by the then Chief Justice.

Union of India did not file an appeal against the Delhi HC judgment: Rohatgi

Mukul Rohatgi dealing with the Naz Foundation judgment of Delhi High Court said that it was a “well-researched judgment by the then Chief Justice.” “Union of India did not file an appeal against the Delhi High Court judgment,” says Mukul Rohatgi.

Additional Solicitor General Tushar Mehta said, “Our stand is yet to be made.” “Thats alright. What I am saying is their stand is clear as daylight since they also filed a review against SC judgment,” Rohatgi argued.

Effects of Section 377 mostly on men: Mukul Rohatgi

“The effect of Section 377 in our country will affect mostly men even though the section appears sex-neutral,” says Mukul Rohatgi. Addressing a Supreme Court bench, the senior advocate said, explained the provision and said any sexual intercourse, which is not vaginal-penal, is hit by this provision.

Ramifications of this case is not just on sexuality but how it impacts society and livelihood: Mukul Rohatgi

Mukul Rohatgi says his case is made out strongly by Privacy judgment of Supreme Court. Aside from the Indian judgments, he will also place reliance on certain US precedents. 

Rohinton Fali Nariman pointed out that even European judgments should be taken into consideration too. 

Rohatgi further said, “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.”

Issues of sexual orientation and gender are different: Mukul Rohatgi

“Issues of sexual orientation and gender are different matters,” Rohatgi tells Supreme Court bench. Reports said that the senior advocate was addressing sexual orientation. “Gender and sexual orientation should not be mixed. The petitioner is not asking for a separate gender.”

“It is a matter of choice whether one identifies as gay or otherwise.” 

Mukul Rohatgi - gender and sexual orientation should not be mixed. The petitioner is not asking for a separate gender.

— The Leaflet (@TheLeaflet_in) July 10, 2018

Section 377 based on Victorian morality. ancient India was different: Rohatgi

Addressing the Supreme Court bench, Rohatgi emphasised that constitutional morality overtakes societal mores. The senior advocate is arguing on behalf of lead petitioner Navtej Singh Johar.

Rohatgi says issues of sexual orientation and gender are different matters. He added that Section 377 is based on Victorian morality. “Ancient India was different.”

As protector of fundamental rights, SC has the duty to protect LGBTQ community: Rohatgi

Mukul Rohatgi referred to the judgments of Hadiya, Shakti Vahini, Common Cause and Independent Thought and said that as the protecter of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.

Hearing begins: Mukul Rohatgi says first question is correctness of judgement in question

Addressing the five-judge bench of the Supreme Court, senior advocate Mukul Rohatgi said, “The first question is the correctness of the judgement in question. If the provision is bad, it does not matter what is the perception of the society.”

Rohatgi further said that reliance is placed upon the Delhi High Court judgement in Naz Foundation (2013), and the Supreme Court judgements of NALSA and the privacy matter.

Mukul Rohatgi - Reliance is placed upon the Delhi High Court judgement in Naz Foundation, and the SC judgements of NALSA and the privacy matter

— The Leaflet (@TheLeaflet_in) July 10, 2018

Mukul Rohatgi - Refers to judgements of Hadiya, Shakti Vahini, Common Cause and Independent Thought

— The Leaflet (@TheLeaflet_in) July 10, 2018

Here are the six petitions which challenge validity of Section 377 in Supreme Court today

There are total 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 v. Union of India (UOI), WP (Crl) No. 76/2016

2. AKKAI PADMASHALI v. UOI, WP(C) No.572/2016

3. Keshav Suri v. UOI, WP (Crl) No.88 of 2018

4. Arif Jafar v. UOI, WP(Crl) No.100/2/18

5. Ashok Row Kavi & others v. UOI, WP(Crl) No.101/2018

6. ANWESH POKKULURI  v. UOI, WP (Crl) No. 121/2018

Read office report regarding writ petitions challenging Section 377 of the IPC

​

The Leaflet tweeted a photo of the office report:

Read office report regarding writ petitions challenging section 377 of the IPC. pic.twitter.com/5zcAgvnUsr

— The Leaflet (@TheLeaflet_in) July 10, 2018

Delhi HC had dismissed 2001 case on the ground f an absence of locus standi

The case which began in Delhi High Court in 2001, had initially been dismissed by the high court on the ground of an absence of locus standi. On appeal to Supreme Court on the limited issue of locus, the top court had remanded the matter back to the HC to be heard afresh, Bar and Bench reported.

Supreme Court’s 2013 judgment: Delhi HC relied upon judgments of other jurisdictions

In its 2013 judgment, Supreme Court order said, that in its anxiety to protect the so-called rights of LGBT persons and “to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions.”

Justice GS Singhvi said that even though “these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature”.

 What did Supreme Court say in 2013?

The Supreme Court in December 2013, in Suresh Kumar Koushal & Ors. versus Naz Foundation & Ors. had declared Section 377 as constitutionally valid, setting aside a 2009 judgment of the Delhi High Court.

The court had held that Section 377 is not unconstitutional while stating that it would be open for the Parliament to consider scrapping the law.

it is not normal… should invest in medical research to see if it can be cured: Subramanian Swamy

Rajya Sabha member and senior BJP leader Subramanian Swamy  on Tuesday said that “it” is not a normal thing. “We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured. Government should consider having a seven or nine judge bench.”

‘Do the right thing, Supreme Court’: Supporters and activists on Twitter

Ahead of the hearing, several activists, supporters and people from the LGBTQ community tweeted out inspirational messages on the social media site. 

#Section377: Historic hearing commences in Supreme Court of India today at 11.30 am before a Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Track @barandbench for live updates.

— Murali Krishnan (@legaljournalist) July 10, 2018

Come on, Supreme Court!#Section377 pic.twitter.com/DhcfVpJJQF

— Shiv Aroor (@ShivAroor) July 10, 2018

Dear Supreme Court. Do what our politicians failed to do. Do the Right Thing. #Section377 https://t.co/3xuyepnEMN

— barkha dutt (@BDUTT) July 10, 2018

Centre requested SC to adjourn hearing, top court rejects plea

Advocate R Balasubramanian, The Times of India reported, requested the Supreme Court bench headed by the CJI to adjourn the Tuesday hearing and said that the Centre wanted to file a comprehensive affidavit responding to the petitions while taking into account views expressed by the nine-judge Constitution bench while dealing with right to privacy

SC rejected Centre’s plea to adjourn today’s hearing

The Supreme Court on Monday rejected the Centre’s plea to adjourn Tuesday’s hearing on petitions against Section 377 of the Indian Penal Code that makes homosexuality a crime.

A bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud refused to adjourn the matter when the Centre sought time to file its response to the petitions.

Several petitions demanded Section 377 be scrapped

Hotelier Kesav Suri, the Managing Director of Lalit Suri Hospitality group who is also an LGBT (lesbian, gay, bisexual and transgender) rights activist, filed the plea in the apex court in April challenging the Constitutional validity of section 377.

In May, another petition was filed by a batch of 20 current and former students of Indian Institutes of Technology on the issue.

What Supreme Court said in their 8 Jan verdict

On 8 January, the top court said that it will re-examine its verdict upholding Section 377, and observed that “a section of people or individuals who exercise their choice should never remain in a state of fear”.

The 8 January order came on a petition by Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others holding that Section 377 was “violative of fundamental rights under the Constitution’s Article 21 (right to life)”.

Naz foundation, other NGOs challenged 2013 SC verdict which re-criminalised gay sex between consenting adults

The Supreme Court, earlier, had referred to a constitution bench several pleas filed by eminent citizens and NGO ‘Naz Foundation’ challenging a 2013 apex court verdict which re-criminalised gay sex between consenting adults.

5-judge SC bench to hear pleas against scrapping Section 377

A newly re-constituted five-judge constitution bench of Supreme Court will commence hearing petitions on repealing Section 377 of the Indian Penal Code (IPC) which criminalises “carnal inter­course against the order of nature” and thereby sexual relationship between persons of same sex.

Justice Rohinton Fali Nariman and newly-appointed judge Justice Indu Malhotra will now be part of the bench along with Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud. The two will replace Justice A.K. Sikri and Justice Ashok Bhushan.