Supreme Court Reserves Order on Scrapping Section 377 of IPC
Will India finally decriminalise homosexuality?
Will India finally decriminalise homosexuality?(Photo: The Quint)

Supreme Court Reserves Order on Scrapping Section 377 of IPC

The Supreme Court on Tuesday, 17 July, reserved its order on pleas challenging the constitutional validity of Section 377 of the IPC, which criminalises carnal intercourse “against the order of nature”. The apex court has asked parties to file written submissions in support of their claim in the matter by 20 July.

On 10 July, the five-judge Constitution bench began hearing the arguments on petitions filed by 12 individuals seeking the scrapping of Section 377.

Snapshotclose

  • “We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights,” the five-judge Constitution bench observed on 17 July
  • The CJI on 12 July said, “We don’t go by majoritarian morality,” in response to contentions that popular opinion was against homosexuality
  • ASG Tushar Mehta, on 11 July, told the bench that the Centre will leave the matter of the constitutionality of Section 377 on the apex court

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SC Refuses to Delay Hearing in Section 377 Case

The Supreme Court on Monday, 9 July refused to adjourn the hearing in the Section 377 case, reported ANI.

The Centre had requested SC to adjourn the hearing as it sought more time to file its response on the matter.

The newly re-constituted five-judge constitution bench is scheduled to commence hearing of four crucial matters, including the issue of sexual relationship between persons of same sex, from Tuesday, reported PTI.

(With inputs from PTI and ANI.)

It's Against Hindutva: Subramanian Swamy on Section 377

As the Supreme Court gears up to hear petitions demanding scrapping of Section 377 that criminalises homosexuality, BJP MP Subramanian Swamy said that it’s not normal and against Hindutva.

“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,” said Swamy.

SC Begins Hearing Pleas Challenging Section 377

A Constitution bench of the Supreme Court began hearing the pleas seeking scrapping of Section 377 of IPC, which criminalises homosexuality.

Hope Things Will Work Out Well This Time: LGBTQ Activist

Jaya, an LGBTQ activist, said that law should be the same for everybody and that the community is hopeful that things work out well this time.

“We hope things will work well this time. When the law is a certain way for everybody then why does it have to be different for us alone? The way we are is not unnatural,” said Jaya.

Don't Mix Issues of Gender and Sexual Orientation: Mukul Rohatgi

Former Attorney General Mukul Rohatgi, while arguing for the petitioners said that the issues of gender and sexual orientation are two different things.

"Issue of gender and sexual orientation are two different things. These two issues should not be mixed up. This is not question of choice," argued Rohatgi.

“This is a case of constitutional morality versus others. This case has a large ramification," he added.

He further argued that criminalisation of Section 377 violates human rights.

“Section 377 violates one's human rights. The issue deals only with sexual orientation and it has nothing to do with gender,” he said.

He also said morals of a society change with time. “As society changes, values change, we can say, what was moral 160 years ago might not be moral today,” he argued.

Matter Still Being Discussed with Govt: Lawyer Representing Centre

Additional Solicitor General Tushar Mehta, representing the central government, told the court that the matter was still being discussed with the Centre.

“I am in the process of discussing the issue, Section 377 is a question of law,” said Mehta.

Convince the Court that Law Won't be Sustainable: Bench Tells Counsel

Arvind Datar, appearing for one of the petitioners, told the five-judge Constitution bench that the 1860 Code was imposed on India and it did not even represent the will of the British Parliament.

He further said that if Section 377 was enacted today, it won't withstand the test of constitutionality. The bench then asked Datar to convince the court that if a law like this was made now, it won't be sustainable.

Having a Different Sexual Orientation Cannot Be Treated as a Crime, Says Petitioner's Lawyer

Arvind Datar, appearing for one of the petitioners, said if a person has a different sexual orientation, it can’t be treated as a crime. He said it can't be treated as “against the order of nature.”

Datar Raises Legal Position of LGBT Community in Europe

Arvind Datar raised the legal position of the LGBT community in Europe in his arguments for the petitioner. He also brought up the case of Trinidad and Tobago, which recently decriminalised homosexuality.

No Such Thing as "Order of Nature": Datar

Datar contended that there is “no such thing as the order of nature”, and concluded his arguments by asking the court to protect the rights of the LGBT community in India and strike down Section 377 of the IPC.

Saurabh Kirpal continued his arguments for the petitioner.

Day 1 of Hearing Concludes, Arguments to Continue on 11 July

Arguments will resume on Wednesday, 11 July. Advocate for the petitioner, Saurabh Kirpal will continue his arguments on Wednesday.

SC Resumes Hearing on Petitions Filed Against Section 377

The Supreme Court on Wednesday, 11 July, resumed hearing on the petitions filed by 12 individuals challenging section 377 of the IPC that criminalises homosexuality.

The SC, on Tuesday, heard arguments by former Attorney General Mukul Rohatgi, arguing for the petitioners and Tushar Mehta, arguing for the central government.

While Rohatgi said Section 377 violates human rights, Mehta told the apex court that the matter still needs to be discussed with the Centre.

Centre Wants Constitutionality of Section 377 to Be Decided by SC

ASG Tushar Mehta tells the five-judge Constitution bench of the SC that the Centre will leave the matter of Section 377's constitutionality on the apex court.

Community Needs to Be Protected by Court: Lawyer for Petitioner

Lawyer for a petitioner, Meneka Guruswamy submitted that the community needs to be protected by the court.

“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,” said Guruswamy.

Centre Urges SC Not to Get Into Issues of Gay Marriages, Property Rights

The Centre urged the SC not to deal with issues like gay marriages and property and inheritance rights, saying it will have many repercussions.

The SC said it will restrict itself to debating whether Section 377 is unconstitutional with regard to consensual sex between two adults.

Court Adjourned Till 2 pm

The Constitution bench of the Supreme Court will resume hearing the pleas seeking scrapping of Section 377 of the IPC which criminalises homosexuality at 2 pm.

Section 377 is Arbitrary and Uncontitutional: Menaka Guruswamy

Counsel for one of the petitioners, Menaka Guruswamy contends that Section 377 is arbitrary and unconstitutional. She adds that it violates articles 15, 19, and 21 of the Constitution.

Section 377 discriminates on the basis of gender of the partners. It 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.
Menaka Guruswamy, Petitioner’s lawyer
KEY EVENT

Jayna Kothari: Section 377 Nullifies Transgender Persons' Rights Afforded by NALSA Judgment

Counsel for one of the petitioners, Jayna Kothari contends that Section 377 nullifies the rights provided to transgender persons provided by the National Legal Services Authority v. Union of India judgment. The judgment was a landmark decision by the Supreme Court of India, which declared transgender people to be the 'third gender'.

KEY EVENT

Section 377 Used Only Against LGBT Community: Shyam Divan

Technically Section 377 criminalises certain acts only, but in its application, it is not used against consenting sexual acts between heterosexual adults, but against members of the LGBT community, advocate Shyam Divan contends.

KEY EVENT

'Section 377 Creates Second Class Citizens, Forces LGBTQ Community Underground'

Advocate Shyam Divan contends that Section 377 creates "second class citizens". He adds that members of the LGBTQ community are forced to become “invisible” and go underground, depriving them of the freedom of expression.

KEY EVENT

Hearing Concludes on Day 2, Petitioners Arguments To Resume on 12 July

Advocate Shyam finished his arguments for the day by submitting that the constitutionality of Section 377 must be tested subject to Article 14 of the Constitution. He also requested the bench for 10 minutes from tomorrow's proceedings to conclude his arguments.

SC Resumes Hearing on Section 377

The Supreme Court on Thursday, 12 July, resumed hearing on the petitions filed by 12 individuals challenging section 377 of the IPC that criminalises homosexuality.

LGBT Community Living in Fear: Court

On the third day of hearing on petitions challenging section 377 that criminalise homosexuality, Justice Indu Malhotra, observed that LGBT community feels inhibited to go for medical aid due to prejudices involved against them.

“Because of family and societal pressures, they (LGBT community) are forced to marry the opposite sex and it leads to bi-sexuality and mental trauma,” observed Malhotra.

Justice Chandrachud said “there is deep rooted trauma involved in the society, which forces the LGBT community to be in fear”

Govt Providing Options for LGBT Community to Get Help: ASG Tushar Mehta

ASG Tushar Mehta, arguing for the Centre told the Ccourt that the Centre was providing “options for LGBT community to get help”.

Criminalisation Deepens Stigma for Community: SC

The court on Thursday, 12 July, observed that the criminalisation of consensual same-sex acts only deepens the stigma for the LGBT community, and creates an environment which is bad for their mental health.

Homosexuality Not New to Indian Culture: Lawyer Ashok Desai

Lawyer Ashok Desai, appearing for one of the petitioners, told the five-judge SC constitution bench that homosexuality is not new to Indian culture, ANI reported.

He also told the court that the LGBT community’s existence is a part of our culture and that many countries have accepted homosexuality.

Hearing Adjourned till 2 pm

The hearing of the petitions challenging Section 377 in the Supreme Court will resume at 2pm.

Supreme Court Resumes Hearing Post Lunch

The Supreme Court on Thursday resumed the hearing of petitions challenging Section 377 after being adjourned for lunch.

Constitutional Issues Cannot be Decided by Referendum, says CJI

CJI rejected a request by one of the intervenors supporting Section 377, to allow the public to vote on whether consensual same-sex acts should be decriminalised.

Court Adjourned for the Day, Hearing to Resume on Tuesday, 17 July

The Supreme court adjourned the hearing in the matter for the day. The court will resume hearing on Tuesday,17 July, with the respondents for the State presenting arguments.

Supreme Court to Resume Hearing on Validity of Section 377

The Supreme Court of India will resume hearing the petitions challenging the validity of section 377 that criminalises homosexuality. A 5-judge bench, led by Chief Justice Dipak Misra, had on Wednesday adjourned the court.

SC Resumes Hearing Petitions Challenging Section 377

Chief Justice of India Dipak Misra-led bench has resumed hearing a clutch of petitions challenging the validity of Section 377 of the Indian Penal Code that criminalises homosexuality.

Justice Nariman Asks: What's 'Order of Nature?'

Manoj Goerge, who is representing two Christian organisations, in the case, submitted to the court that there is intelligible differentia in section 377 as the classification is based on whether carnal intercourse is against "order of nature" or not.

Responding to George, Justice Nariman asked if all the acts that do not lead to procreation should be treated as "against the order of nature", reports Live Law.

No Scientific Evidence to Prove People Born With Sexual Preferences: Manoj George

Live Law reports the George has submitted that there was no scientific evidence to prove that people were born with a particular sexual preference, adding that people who showed interest in the same sex initially may not show such an attraction later.

Justice Nariman Cites the Case of English Mathematician Alan Tuning

You see, how Alan Turing, the popular English Mathematician and also a computer scientist, committed suicide after he was chemically castrated, observes Justice Nariman.

CJI Dipak Misra Says 'Your Sexual Orientation Can't Effect Others' Dignity'

The Chief Justice of India, Dipak Misra, says: “your enjoyment or sexual orientation can't affect the dignity of others. That’s why consent between two adults is a primary requirement”.

Gay Relationship Will Lead to Increase in HIV, SIT, Says George

George trying to argue that allowing gay relationships will lead to increase in HIV and other STIs. Justice Chandrachud responds, saying that suppressing things only makes it worse, showing it ensures care and treatment.

'Violation of Fundamental Rights Cannot be Left Just for Legislature to Fix'

The whole object of fundamental rights chapter is to strike down those laws which would otherwise not be struck down by majoritarian governments. We won't wait for majoritarian governments to enact or delete, says Justice Nariman.

Hearing to Resume at 2 pm

The Supreme Court bench, hearing the petitions challenging the constitutionality of Section 377, will now resume the hearing at 2 pm.

'Environment in Indian Society Led to Deep-rooted Discrimination Against LGBT Community'

The court observed that an environment has been created in Indian society over the years that has led to deep-rooted discrimination against the community which has also adversely impacted their mental health.

Earlier, the government had left it to the apex court to test the constitutional validity of Section 377, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it, reported PTI.

Taking note of the Centre's submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.

Post-Lunch Hearing Begins

The SC has resumed hearing petitions challenging the validity of Section 377. The court is still hearing pro-section 377 arguments. Now, K Radhakrishnan, representing an NGO which claims to support and guide "pro life movements in India", is presenting his arguments. Radhakrishnan also says that an 11-judge bench should hear the case so that it’s not bound by the privacy judgment.

Homosexuals Spread HIV and Other Diseases, Says Pro-Section 377 Lawyer

Radhakrishnan has now argued that homosexuality leads to "spreading HIV and other diseases". He claims there is a report of the American Psychiatrists Association which says that homosexuals spread AIDS. Menaka Guruswamy demonstrates this is fake.

Another Intervenor Argues Reading Down Section 377 Will "Destroy Marriage"

Another intervenor claims that reading down 377 will destroy the institution of marriage because this would allow married people to have homosexual relations as well. It can only be possible for unmarried couples, if at all, he says.

KEY EVENT

SC Reserves Order on Scrapping of Section 377

The Supreme Court on Tuesday, 17 July, reserved its order on pleas challenging the constitutional validity of Section 377 of the IPC.

The apex court has asked parties to file written submissions in support of their claim in the matter by 20 July.