Case updateSection 377

DAY 2: Historic challenge to constitutionality of Section 377 in Supreme Court begins: Live updates with The Leaflet

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DAY 2

Written submission by Anand Grover

[WATCH] TheLeaflet_in co-founder and Senior Advocate Supreme Court — Anand Grover — talks to LGBT rights activist Ashok  Rao Kavi

. #LeafLens

[RECAP] Senior Advocate Shyam Divan argued on behalf of an intervenor, a group called Voices Against 377. He referred to para 2 of his note and seemed a declaration to read to Section 377 to exclude consenting adults. He stated that it is time to declare a right to intimacy as a core human right, as it makes live worthy of living.

Referring to Article 15, he asked the court to envisage a situation of medical emergency where the LGBT community faces problems with respect to permissions. He also raised the issues of employment and opening bank accounts, to be considered under Article 15.

He further talked about the visibility of the considerable LGBTQ population of India. He said they are visible because Section 377 forces them to be viewed under a different light. He then cited relevant parts from various judgements, such as a judgement from Trinidad and Tobago following the Puttuswamy judgement and para 24 of the NALSA judgement.
Divan further referred to paras 28 and 29 of his written submissions, and questioned what could be held as against the order of nature. He said that humans develop their sexual orientation between childhood and adulthood. It is at the core of one’s personality, and cannot be altered. He says that homosexuality is to a disorder, but another kind of sexuality and has been observed across many species. He then referred to the amicus brief tendered to the SCOTUS which mentioned how homosexuals are compelled to lie to retain social interactions. He then proceeded to refer to the notice issued by the Indian Psychiatrists Association and Nehru’s comments about the “monstrous provisions” of the Criminal Tribes Act, which treated the LGBTQ as criminals at the time of its notification in 1952. Additionally, he argued that Section 377 has to be tested against a higher threshold vis-a-vis Article 14.

Before the bench rose for the day, ASG Tushar Mehta seek for some time to “deal” but not “oppose” some of the petitioners’ arguments.

[RECAP] With respect to Article 15, Jayna said that “sex” includes sexual orientation as well as gender identity which was allowed by the NALSA judgement. Discrimination under Articles 15 and 16 include instances pertaining to gender identity. Section 377 not only discriminates against males and females indulging in such acts, but also people who identify as neither. While expressing gender if one identifies in themselves in a certain manner and is penalised by the law, then it will be discriminatory as per Article 15.
She also said that Section 377 denies the freedom to express themselves, their gender, their mannerisms, their conduct, their way of dressing and the freedom to come out in public in whatever manner they want. In response to CJI Misra’s summarisation of her arguments, she claimed that Section 377 creates and obstruction in the exercise of rights, to which the CJI added by holding the restrictions to be unreasonable as being transgender was natural. On the issue of Article 19, Jayna reiterated the NALSA judgement with respect to the freedom of expression being extended to he expression of gender identity, as well has relied upon the Yogyakarta Principles. She further proceeded to read out sections from ECHR judgements, which the CJI remarked had earlier been covered in the Puttaswamy verdict.

With this, she concluded her arguments.


She is addressing Articles 14, 15, 19 and 21 in context of transgender people. Stating that gender identity was first guaranteed as right under NALSA, she proceeds to read relevant parts of the judgement which demonstrate how Article 14 guarantees equal protection and positive obligation of the State.

Jayna claims Section 377 violates the right to equality of transgenders, as it holds any sexual relations entered by people like her client as unnatural.


Jayna Kothari begins to argue by defining sexual orientation as “identifying gender without sex re-assignment surgery”. She says that the NALSA verdict gave a “galaxy of rights” to transgender people.One of the petitioners she is representing was born male and had a sex reassignment surgery, and another was born male and identified as a female without undergoing the surgery. The petitioners could exercise their gender identity had passports etc, but the remaining 377 had the worst impact on them.
She refers to the now repealed Criminal Tribe’s Act. The CJI intervenes saying that act is gone and they will not dwell upon it. Still, Jayna persists as one of its sections held eunuchs to be suspect under Section 377, which established their link with transgender people. She also stated that the Telangana Eunuch’s Act continues to bear the section that holds eunuchs to be suspect of unnatural offences.


[COMMENT] Talking to the leaflet  Chayanika Shah says, “All the media were already arguing for us when the case came up. It is a completely different moment form 2001 to 2018 that you feel that everyone is convinced and arguing on your behalf. It looks like the final push to Section 377 will be given. It is very hopeful. it seems like this battle atleast that decriminalizes certain kind of acts and in term certain kind of lives, this will be successful now, this what it is seems like. But the battle doesn’t end.”


Hijras are usually suspected of violating 377 of IPC- Jayana


Anand Grover :It is well said that when India attained independence, the LGBTQI communities, and for that matter a lot of communities, did not attain independence fully. The LQBTQI communities now seek to attain full independence from the yoke of a British colonial law, which has oppressed them for nearly 160 years and continues to oppress them even after independence. A 19th Century law is being applied in the 21st century, when it is repealed long ago in the country of it s origin.

That independence is in your hands. You can liberate them from the yoke of colonialism. But do so with words which will strike a chord with an ordinary member of the LGBTQI community. Their tryst with destiny will be met when tears from their eyes are wiped out.


Anand Grover, written submission, para 190: The Humsafar Trust has conducted a study in 2017 with the Transgender community in three cities (Mumbai, Delhi and Bangalore) assessing the needs and situation of the Transgender communities, particularly in the backdrop of the coming into force of Section 377, IPC in 2013. In this study, violence related question referred to all forms of violence like physical beating, sexual assault, teasing, bullying, threat, blackmail, extortion and financial abuse for creating public nuisance, soliciting and citing Section 377, IPC as a tool for harassment. In the study 59 percent of Transwomen experienced violence


Anand Grover refers to a case of Gay Professor from Aligarh Muslim University who was suspended by the University. Later he committed suicide. He reads out from the Allahabad High Court Judgment quashing suspension of Prof Siras.

Anand Grover: In 2001 when the Naz Foundation Petition was filed hardly any gay man, except Ashok Row Kavi, the Petitioner in WP No. 101 of 2018, was willing to come forward to file a petition in court. But today people falling all over each other to file a petition. The CJI had to tell people that we cannot entertain any more petitions but they will be all heard. In a way it is good thing. The LGBTQI community can be out. But this changed because of judgment of the Delhi High court Naz Foundation case.


Consensual part is facet of choice. Says CJI.

Anand Grover, written submission, para 210:After the Koushal decision, LGBT persons have been hesitant and fearful of approaching State authorities and have continued to suffer injustice in silence.
Anand Grover, written submission, para 211:Section 377 violates the fundamental right to access justice under Articles 14 and 21.


Anand Grover: Prosecution of cases u/S377 increased and in particular blackmail and extorting became frequent. We get a lot of clients who are threatened with blackmail but cannot do anything because they are afraid of reporting to the police about that, lest they would be arrested under S377. This infringes their right to access justice.


Anand Grover, written submission, para 95: In National Legal Services Authority v Union of India 2014 (5) SCC 438 (hereinafter “NALSA”), this Hon’ble Court held that: – “discrimination on the ground of sexual orientation and gender identity, therefore impairs equality before law and equal protection of law and equal protection of law and violates Article 14 of the Constitution of India.”


Anand Grover, written submission, para 140: India is obligated to provide marginalized populations including gay men, other men who have sex with men, and transgender persons health facilities, goods and services which are Available (in sufficient quantity), Accessible (physically, geographically, economically, and in a non-discriminatory manner); Acceptable (respectful of culture and medical ethics); and of Quality (scientifically and medically appropriate and of good quality).

Anand Grover, written submission, para 102: After the adoption of the Criminal Law [Amendment] Act, 2013, section 377 is no longer neutral or blind to sexual orientation. It applies to sexual acts between ‘a man and a man’ on the basis of sexual orientation and identity. As it stands today, section 377, IPC is violative of Articles 14 and 15 of the Constitution.


Anand Grover, written submission, para 99: there is no prohibition on heterosexual persons, who are adults, from engaging in ‘anal’ or ‘oral’ sex consensually. However, the same activities, when practised by adult males [homosexual persons] invite punishment under section 377, IPC though there is consent. This is patently discriminatory, as it singles out homosexual persons as a class, upon whom penal law [under section 377] is imposed.


Anand Grover, written submission, para 89: the object [of prohibiting sex against the order of nature] itself is illogical, irrational and cannot be countenanced in a liberal, democratic and plural society.

If the object isn’t fair, statute isn’t sustainable. Says Anand Grover.


Anand Grover: The language of section 377 is so vague that ordinary persons do not know what conduct would invite penal prosecution. Similarly, authorities who enforce the law remain uncertain as to what actions are lawful and what are prohibited by the law


Anand Grover: I cannot tell you how many transgender persons have been to my office carrying the NALSA judgment and telling that how great it is and how it is or it is not implemented. The NASLA judgment is like a bible and armour to the Trangender activists-their only protection against an oppressive state and hostile society. Constitutional Court engages in a dialogue not only with the state but also with different sections of society. In that dialogue, by its decisions, Constitutional Courts motivate, persuade, cajole and nudge civil society towards what has been called Constitutional Morality.


Anand Grover: Constitutional values are embraced in the Preamble of our Constitution, that we shall secure to its citizens Justice, Liberty, Equality, Fraternity assuring Dignity to the individual.


Prayers are wide under writ petition. It isn’t just simply reading down 377, says Menaka Guruswamy.

Menaka Guruswamy says court to examine constitutional issue within the ambit of Part III.


Any disqualification based on 377 will be automatically lifted once court declares it unconstitutional says CJI.


Menaka cites Khushboo vs Kanniammal & Ans .

Tushar Mehta objects at the submission of right to form association. Nariman J. says let Menaka argue.


[RECAP OF DAY 2]

ASG Tushar Mehta

There was an exchange between CJI Misra and ASG Mehta regarding the issue being adjudicated upon. Mehta said that issues which do not pertain to the matter should not be delved into. The CJI responded by saying that they are on the matter of consensual sex between two consenting adults, regardless of their orientation. He also said that Section 377 is not limited to sexual orientation or the LGBTQ community, but also factors in “unnatural activities” involving two consenting adults.

ASG Mehta responded by asking the Court to ensure fundamental rights are not violated in the future. To this, Justice Chandrachud stated that they have to consider the aforementioned issues to prevent moral policing.

Saurabh Kripal

Saurabh Kripal resumed his arguments, by elaborating upon the protections provided by Articles 14, 15 and 21. He analysed the Puttaswamy verdict to bring forth the content of Article 21 and asked whether sexual orientation is protected under the aforementioned articles.

CJI Misra followed up by raising the issue of inheritance, to which Kripal responded by saying that judicial conscience with respect to such issues will develop eventually.

Kripal then proceeded to state that the Shakti Vahini and Hadiya cases held Articles 14, 19 and 22 to include the right to choose a sexual partner. He further argued that once sexual minorities have rights under Article 19, Section 377 goes.  Justice Chandrachud commented that the sexual part of a relationship is much broader, and the bench is considering to recognise the nature of relationships under Article 21.

This was followed by Kripal passing his compilation to the judges for deliberation, and then proceeding to read out paras 44 and 45 of the Shakti Vahini judgement.

Maneka Guruswamy

Maneka Guruswamy commences arguing, claiming Section 377 denies the LGTBTQ community full participation in professional life guaranteed by Article 15. She states that Section 377 has chilling effect on freedom of speech and expression, and cannot be classified as a reasonable restriction. She further argues that it infringes upon the right to association.

She hails the Supreme Court to be a global trail blazer for the protection of queer rights, and its verdicts are awaited in Courts of other countries.

She says that the colonial legacy has to go, before advancing her arguments in detail.

Maneka Guruswamy says that Section 377 discriminates based upon the sex of a chosen partner. She is relying upon two cases to address proportionality, starting of with para 87 of the Shayara Bano case. She says that the thread of reasonability runs through the entire chapter on fundamental rights of the Constitution. She claims punishing consensual sexual acts between adults upto life imprisonment even after a criminal law amendment, is nothing but disproportionate.

She further states that Article 15 prevents discrimination by the State on the basis of religion, race, caste, sex and place of birth. She also reiterates the SC’s stance that the Constitution should not be read in a narrow and pedantic manner, and it was not possible for the drafters to textually address all manifestations. Stating that Articles 14, 15 and 16 to be the teeth of the equality doctrine, she claims that at a simple textual reading, Section 377 discriminates on the basis of sex, hence being violative of Article 15.

She states how she is struck by the plight of the IITians she is representing. Being amongst the brightest and the best in the country, with only 2000 applicants getting through each year, she was struck by the unacceptable darkness that Section 377 brought upon them. Rather than channelling their brilliance in building fashion, they lived in fear.

She highlights the first petitioner Sunil Mehra’s story who cleared the IAS examination but didn’t join the services in fear of the law being used against him. 26 years of the petitioner’s life where he had been with his partner have gone by.

She asks the Court to tell the petitioners that their lives will be different and would be taken care of by the protection of equal citizenship under Articles 14, 15 and 21. By being loved and protected by their Court and Constitution, they shall be able to live in this country unafraid. She proceeds to read cases from South African and Canadian courts,  and impleads the Court to constitutionally recognise their love, which has weathered the harms posed by Section 377.

Maneka Guruswamy then proceeds to read Shafin Kahani, Shakti Vahini and other common cause judgements. Developing arguments that Section 377 denies participation in professional life guaranteed by Article 15, she reads Jeeja Ghosh, which held discrimination occurs due to arbitrary denial of equal participation. CJI Misra interjected, asking whether there exists a rule denying depriving homosexuals from seeking employment. She responded that the NALSA verdict noted the number of transgenders running for office, but the offence remained. NALSA brought confidence to transgenders to enter the electoral arena. CJI Misra then commented that even pre NALSA a transgender was allowed to contest for a mayor’s post, which meant that it was not restricted. To this Guruswamy responded by stating that a chilling effect still existed.

This exchange was followed by a comment from Justice Chandrachud, “if law imposes a sanction on relationships, what it does is support the social behaviour. If a relationship has penal sanctions it imposes social disdain on parties in the relationship.”

Before rising for lunch, CJI Misra offered the following comment : “How one feels freedom is subjective.”

 

She asks the Court to tell the petitioners that their lives will be different and would be taken care of by the protection of equal citizenship under Articles 14, 15 and 21. By being loved and protected by their Court and Constitution, they shall be able to live in this country unafraid. She proceeds to read cases from South African and Canadian courts, and impleads the Court to constitutionally recognise their love, which has weathered the harms posed by Section 377.

She states how she is struck by the plight of the IITians she is representing. Being amongst the brightest and the best in the country, with only 2000 applicants getting through each year, she was struck by the unacceptable darkness that Section 377 brought upon them. Rather than channelling their brilliance in building fashion, they lived in fear.

She highlights the first petitioner Sunil Mehra’s story who cleared the IAS examination but didn’t join the services in fear of the law being used against him. 26 years of the petitioner’s life where he had been with his partner have gone by.

 

denies equal participation to LGBT community in professions.

Menaka Guruswamy refers to decisions of Canadian and  South African Supreme Court. She submits that business of life is protected under Article 14, 15, 19 & 21 of the Constitution.

Maneka Guruswamy says that Section 377 discriminates based upon the sex of a chosen partner. She is relying upon two cases to address proportionality, starting of with para 87 of the Shayara Bano case. She says that the thread of reasonability runs through the entire chapter on fundamental rights of the Constitution. She claims punishing consensual sexual acts between adults upto life imprisonment even after a criminal law amendment, is nothing but disproportionate.

She further states that Article 15 prevents discrimination by the State on the basis of religion, race, caste, sex and place of birth. She also reiterates the SC’s stance that the Constitution should not be read in a narrow and pedantic manner, and it was not possible for the drafters to textually address all manifestations. Stating that Articles 14, 15 and 16 to be the teeth of the equality doctrine, she claims that at a simple textual reading, Section 377 discriminates on the basis of sex, hence being violative of Article 15.


Menaka Guruswamy reads out statement of Indian psychiatric society. It says same sex is normal variant. This society has favoured decriminalisation of 377.

Sex under Article 15 includes sexual orientation too. Submits Guruswamy relying upon J S Verma Committee report.

Maneka Guruswamy commences arguing, claiming Section 377 denies the LGTBTQ community full participation in professional life guaranteed by Article 15. She states that Section 377 has chilling effect on freedom of speech and expression, and cannot be classified as a reasonable restriction. She further argues that it infringes upon the right to association.

She hails the Supreme Court to be a global trail blazer for the protection of queer rights, and its verdicts are awaited in Courts of other countries. 

She says that the colonial legacy has to go, before advancing her arguments in detail.

Stereotyping is impermissible within the Constitution says Menaka Guruswamy.

Menaka Guruswamy reiterates that section 377 is violative of Article 15. It discriminates on the basis of sex. Section 377 stereotypes.

[RECAP] Saurabh Kripal resumed his arguments, by elaborating upon the protections provided by Articles 14, 15 and 21. He analysed the Puttaswamy verdict to bring forth the content of Article 21 and asked whether sexual orientation is protected under the aforementioned articles. CJI Misra followed up by raising the issue of inheritance, to which Kripal responded by saying that judicial conscience with respect to such issues will develop eventually. Kripal then proceeded to state that the Shakti Vahini and Hadiya cases held Articles 14, 19 and 22 to include the right to choose a sexual partner. He further argued that once sexual minorities have rights under Article 19, Section 377 goes. Justice Chandrachud commented that the sexual part of a relationship is much broader, and the bench is considering to recognise the nature of relationships under Article 21. 

This was followed by Kripal passing his compilation to the judges for deliberation, and then proceeding to read out paras 44 and 45 of the Shakti Vahani judgement.


Menaka says Supreme Court has always steps in when legislature has been inactive.

She is arguing on behalf of 20 students from all IITs

Menaka is reading out her prayers. Seeks declaration to the effect that 377 violates Article 14, 15, 19 & 21.

She says section 377 violates Article 14, 15, 19 & 21. Hands over a written submission to the bench. She goes on to say Section 377 violates Article 15 because it discriminates on the basis of sex and Section 377 is a colonial legacy

There was an exchange between CJI Misra and ASG Mehta regarding the issue being adjudicated upon. Mehta said that issues which do not pertain to the matter should not be delved into. The CJI responded by saying that they are on the matter of consensual sex between two consenting adults, regardless of their orientation. He also said that Section 377 is not limited to sexual orientation or the LGBTQ community, but also factors in “unnatural activities” involving two consenting adults. 

ASG Mehta responded by asking the Court to ensure fundamental rights are not violated in the future. To this, Justice Chandrachud stated that they have to consider the aforementioned issues to prevent moral policing.
Sourabh Kirpal concludes citing privacy judgment.

Sourabh Kirpal refers to Supreme Court Judgment in Shakti Vahini case (honour killing case). He is reading out extracts from the Judgment


Whether civil rights would follow would be decided in another lis. Says CJI.


D Y Chandrachud says what if two homosexuals are not indulged in sex but they are still being subject to moral policing?


ASG Tushar Mehta – For the Union of India, the right to choose is a fundamental right and states that it will not contest and leave the Constitutional validity of consensual sex on the wisdom of Bench.


The govt leaves the issue of to the Court’s wisdom

Tushar Mehta says whatever isn’t under question may not be touched upon

Tushar Mehta on behalf of Union of India submits affidavit.

DAY 1

[WATCH] TheLeaflet_in co-founder and Senior Advocate Supreme Court — Anand Grover — talks to queer rights activist Chayanika Shah. #LeafLens

Live Updates


Datar concludes his arguments with asking the Court to declare that there is nothing against the order of nature

Datar also refers to para 490 of Justice Nariman’s judgement in the privacy matter. He further refers to relevant paragraphs from the concurring opinion of Justice Kaul from the privacy judgement. He also refers to last para, 132, of the Delhi High Court Judgement in the Naz Foundation case

Datar is now reading passages from the privacy judgement, starting off with para 108. He says, Para 108 emphasises the importance of dignity, and should be read with paras 118 and 119.Datar further refers to paras 144, 145, 248 and 250 of the privacy judgement.

[COMMENT] Queer rights activist and scholar Gautam Bhan says: For many queer people, this moment is familiar. It is one that many of us have faced or live in a constant fear of facing. In some ways, it is the latter that is worse. We live our lives anticipating prejudice. Even before it comes, we are constantly censoring, moving, and shaping our lives to evade it or, if we can’t, to survive it. Those of us who have the privilege of privacy scan rooms to find allies, weigh what to tell our doctors, measure out information in our offices, and seek safe spaces. Those without this privilege face a much more direct battle to be who they are: an unrelenting and legitimised public violence that falls on working class bodies in our streets, police stations and public spaces. The law is not the only force behind this violence, but it is an important one. “Why do you think,” the blackmailer asks, “it’s illegal to be gay in India?” When petitioners in the Naz Foundation case argued that Section 377 of the Indian Penal Code played an important part in shrouding our lives in criminality and of legitimising violence, this letter was one of many that we wrote against in our heads.

Yet, what happened next is also a story of what has changed since 2001 when the case was filed. The student, at some point, answered his blackmailer. He pinned a reply on the same noticeboard and spoke about not being ashamed of his sexuality. Even before the Delhi High Court judgment of 2009, the language of how we talked about homosexuality and gender identity had begun to — slowly, but surely — shift. When we spoke about our lives, we spoke of dignity, not obscenity; of persons, not acts; of friendship, love and sex; of genders in the plural, not the fixed and dichotomous; of a full human life. We fought our demons, we marched on streets, we made support groups, we sheltered people who ran away. We lost many along the way. Too many. We will lose more still. Yet slowly, even if still incompletely, queer people have begun to win the greatest battle of our lives: we have begun to believe that we have the right to have rights. We have begun to believe that we have the right to dignity, the right to our bodies, the right to be happy. Whether these rights come through law or through struggle, they will come. In a moment where there are so many that are made to believe that they are redundant and negligible, the value of this cannot be underestimated. The Delhi High Court judgment made us believe it that much more — perhaps another generation has inherited only some of our fears. You cannot blackmail someone, said the student who isn’t ashamed.

Today, [the court] has an opportunity. An opportunity to defend not a “minuscule minority” but a democracy we all share. An opportunity to remember its promise to be the last resort of the bewildered and the oppressed, to remember that rights expand and grow and that they cannot be, must not be, taken back and shrunk. An opportunity, more than anything, to write back to the blackmailer’s letter and tell its author that they will not let dignity be the domain of the few and injustice the everyday of the many.

[COURT UPDATES] Datar is referring to judgements from the European Court Of Human Rights. He cites judgement from Trinidad and Tobago

Justice Indu Malhotra, the only woman judge on the Constitution bench, now speaks after Aravind Datar’s  submission on homosexuality as a normal & benign variation of “human sexuality”: It (homosexuality) is not only seen in humans but also in animals.

[QUICK BACKGROUND] On April 27, 2018, fresh writ petitions challenging the constitutional validity of Section 377 Indian Penal Code were mentioned before the Supreme Court bench comprising of Chief Justice of India Dipak Misra and Justices Indu Malhotra and DY Chandrachud by senior advocate Anand Grover.

Six more petitions have been filed by Mumbai based NGO Humsafar Trust, Ashok Row Kavi, Vivek Raj Anand, Gautam Yadav, Yashwinder Singh and Arif Jafar. These are expected to be tagged along with the petition filed by hotelier Keshav Suri and five other public personalities which has been placed before a constitution bench.

One of the petitions mentioned on Friday (April 27) Arif Jafar v. Union of India & Ors. was filed by a petitioner who is a homosexual man who suffered arrest and detention and prosecution on account of his sexual orientation and has experienced first-hand the violation of his fundamental rights and freedoms guaranteed under Part III of the Constitution of India on account of section 377 of the Indian Penal Code.

The following questions of law of public interest were raised in this petition:

  1. Whether section 377 that criminalises ‘voluntary carnal intercourse against the order of nature’, does not violate the fundamental right to privacy?
  2. Whether section 377 that criminalises intimate expression between consenting adults does not violate the fundamental right to privacy, dignity and autonomy under the Constitution of India?
  3. Whether section 377 that criminalises persons on the basis of their sexual orientation and identity, does not violate fundamental right to equality and non-discrimination under Articles 14, 15, read with Articles 19 and 21 of the Constitution?
  4. Whether section 377, which neither defines nor explains what constitutes ‘carnal intercourse against the order of nature’is not arbitrary and violative of Articles 14 and 21 of the Constitution?
  5. Whether section 377 that impairs autonomy and expression in one of the most personal decisions of an individual’s life, i.e. the choice of one’s partner and intimate association is not violative of Articles 19 and 21 of the Constitution?

[COURT UPDATES] Datar says: If the foundation of the law exists no more, there is no reason to continue with it.  is eclipsed post the privacy judgement and needs to be struck down . the rights of the LGBT community cannot be considered “so-called” rights.


Datar – The right to a sexual orientation is part of Article 21


Reading out of his written submissions, Datar says that sexual orientation is a natural process


Datar- A person cannot be punished for exercising their sexual orientation. Same sex orientation can never be against nature as it is natural


Datar – The purpose of a penal code is to punish a crime and create deterrence

CJI Misra – Nature and choice are different concepts

[COMMENT] On Section 377, Anand Grover, the petitioner’s lawyer in the Naz Foundation case, writes:The British got rid of it. India remains with countries it would not like to be associated with otherwise.

Section 377, titled “unnatural offences”, was enacted by the British after we lost our First War of Independence in 1857. They imposed their religio-cultural values upon us. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.

Section 377 penalises non-procreative sexual acts and any act of sexual perversity, as has been interpreted by different courts. Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at gay men.

The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) rightly held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people. Gay men are seen as criminals by the law because of Section 377, and thus by other members of society. This judgment lifted the criminal restrictions on gay men. However, it was short-lived as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment. The Koushaljudgment did not notice that the rape law itself had changed whereby instead of mere restriction on penile-vaginal non-consensual sex, it now includes a range of sexual activities, including digital and object penetration.

Discriminatory in nature: Section 377 is now restricted only to gay men and perhaps transgender people. The contradictions in the law are glaring. Consent is considered to be irrelevant. In the case of children, law presumes no consent. Therefore all sexual acts between an adult and a child are penalised.

The latest judgment on privacy by the Supreme Court has observed that Koushal has not appreciated the fundamental right to privacy in its application to Section 377. The Koushal verdict is dead; only its burial remains.

After the Koushal verdict, there have been a large number of cases where gay men are being blackmailed by their acquaintances and the police in connivance with each other. These cases have sharply risen in the last three years. Though there is recourse in law, no gay man can take recourse to it because Section 377 itself makes gay men’s sexual practices illegal and would put them in danger of being arrested. I have come across cases where people have undergone terrible humiliation and psychological stress, apart from being blackmailed either by their acquaintances or the police. No human being ought to be subject to such acts on account of a natural sexual affection for another human being.

Not in great company: The worst aspect of Section 377 is at the individual level. It makes gay men feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.

The British, who enacted the law, got rid of it in the 1960s in England. Many countries have got rid of such laws, either by amendment of legislation or vide decisions of the court. India now remains with countries which India would not like to be associated with otherwise.

While most people gained independence from the British, the LGBT community, and gay men in particular, in India have remained chained to Section 377. It is high time that the chains are broken and we get rid of Section 377 so that gay men and the LGBT community can live their lives with dignity.

Datar refers to para 45 of the Koushal judgement which dealt with the presumption of constitutionality

[COMMENT] Queer rights lawyer Amritananda Chakravorty writes:

“Though queer women are not technically covered under Section 377, IPC, the effect of the law on them has been disastrous, to say the least. Numerous cases of women being threatened with prosecution under Section 377 or being charged therein exist, as well as families threatening to file false cases against ‘errant daughters’. Instances of corrective rapes, often by own family members, have also surfaced. Despite suffering considerable domestic violence, including sexual abuse, there is little evidence to suggest that queer women are using the Protection of Women against Domestic Violence Act, 2005 against their natal families.”


CJI Misra says that Section377 can only be attacked if it is not in conformity with Part III of the Constitution


Datar asks whether the legislature could draft a provision like today?

CJI Misra asks whether there is any case law holding that that pre constitutional laws do not enjoy the presumption of constitutionality?


Datar refers to Lawrence v Texas, where the amicus brief referred the entire history

Datar submits a written note to the Bench

A roundup of important tweets and comments from queer & civil rights activists.

Nariman- You argue the breath of fundamental rights. Reads para 50 of Naz Foundation case. Reads on constitutional morality from Naz foundation case

Mukul Rohatgi – It is not a medical condition but merely an order of nature. Section 377 violate right to life, which also incluthe des right to dignity and sexual orientation and choice of partner

Mukul Rohatgi vehemently submits to the Court not to restrict the hearing to Section377 alone

CJI Misra – Issues like marriage and inheritance will be discussed in an appropriate list.


ASG Tushar Mehta says it is unfair that no time was given to the Union of India to take a stand


Justice Chandrachud says the Right to Sexual Orientation is a part of the larger rights


Rohatgi refers to para 34 of the Naz Foundation judgement by the Delhi High Court which mentions the abortion(Jane Roe v. Wade) case

Rohatgi reads out para numbers 24, 25 and 26 of the Naz Foundation judgement by the Delhi High Court

Mukul Rohatgi argues that homosexuality is also an order of nature. Tells Supreme Court bench “Morals of the British of the 1860s can’t decide what’s nature. The morality of ancient India was different from Victorian morality

Tushar Mehta: Union of India yet to take a stand

Mukul Rohatgi-Union of India never filed an appeal against the Delhi Judgement

Mukul Rohatgi – Naz Foundation judgement was well researched by then Chief Justice of the Delhi High Court

Now Rohatgi is reading out relevant extracts from the Delhi High Court Judgement in the Naz Foundation Case


Rohatgi requests the bench to refer to the Naz Foundation case

Mukul Rohatgi – “consensual” from Section 375 carves out an exception to


Mukul Rohatgi – A law valid 50 years ago may not be valid after 50 years because of the changes in society

Mukul Rohatgi – is contrary to the effect test, and is manifestly arbitrary


Q : pre-constitutional statute: on whom is the burden, submits Rohatgi

Mukul Rohatgi tenders a note of submission to the bench which is being read out

Justice RF Nariman – sexual minority is in the order of nature

Mukul Rohatgi-Western Research shows that it is inborn

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


Mukul Rohatgi – Emphasises that constitutional morality overtakes societal mores


Mukul Rohatgi reads out reference order dated January 4, 2018 subsequent to which the present five judge constitutional bench is constituted

Mukul Rohatgi – SC being the protector of fundamental rights has the duty to protect the LGBTQ community


Mukul Rohatgi – If the provision is bad, is does not matter what is the perception of the society

Curative Petition has limitation, not a writ petition. CJI to lawyer who is asking to take up curative Petition as well.

Five Judge Constitution Bench has assembled. Hearing to commence shortly.

Background

The five-judge constitution bench of the Supreme Court, presided over by Chief Justice of India, Dipak Misra begins hearing of a batch of petitions challenging section 377 of IPC which criminalises and penalises what it terms an “unnatural offence”, insofar as provision adversely affect consensual relations between adults.

Other justices in the bench include, Rohinton F Nariman, A K Khanwilkar, D Y Chandrachud and Indu Malhotra, JJ.  Constitution bench to assemble at 11:30 AM today in CJI’s court.

There are total six substantive writ petitions along with multiple intervention applications challenging validity of section 377 of IPC.

Details of cases are as follows:

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

Legal history of challenge to Section 377

The contentions surrounding Section 377 of the Indian Penal Code arose in 1994. Providing for prosecution of “Whoever voluntarily has carnal intercourse against the order of nature”, the section’s text propounds archaic Judeo-Christian norms of collective morality. This section deems any instance of non-procreative, heterosexual intercourse as a unnatural, and warranting of a maximum punishment of imprisonment for life. Further, in light of the fact that the text of this section has remained unchanged since it’s enactment over 150 years ago, it holds any form of consensual penetrative sexual activity, between adults irrespective of their sexual orientation, as illegal and warranting State sanctioned punitive action.

In 1994, the first petition challenging the constitutional validity of the impugned section was filed, by an NGO AIDS Bhedbav Virodh Andolan (ABVA), as a Public Interest Litigation in the Delhi High Court. It stemmed from then Inspector General of Prisons, Kiran Bedi, denying the provision of condoms to inmates of Tihar Jail, to prevent HIV transmission in light of the high incidence of sodomy among the inmates. The petition argued that such actions of the jail authorities were violative of the unenumerated right to privacy under Article 21 of the Constitution, as sexual orientation was seen to be as a matter pertaining to the private domain with the State having no ambit to infringe upon, as well as the right to equality as the jail authorities segregated and isolated prisoners  based upon their sexual orientation and their HIV/AIDS diagnosis status, both of which do not match up to the metrics of the constitutionally mandated reasonable classification test.

This petition though, was not followed up, and seven years later in 2001, the cause was revived by another NGO, Naz Foundation, which filed a writ petition at the forum of the Delhi High Court, seeking section 377 to be declared as unconstitutional. Their arguments premised upon the section penalising consensual sexual acts between adults in private, were violative of Articles 14 (equality before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedom of speech, assembly, association and movement) and 21 (right to life and personal liberty).

The petition, in addition to relying upon the arguments advanced in the ABVA PIL, posited that the impediment to causes such as HIV/AIDS prevention violated the queer community’s right to life. Further, the law denied public accessibility of HIV-preventive means such as contraceptives to homosexuals, especially MSMs, due to the fear of prosecution, hence forcing them to go “underground”. The second reason argued was law’s proscription of “non-procreative sexual activity” as violative of a person’s right to life, as sexual preferences are an inalienable component of this right. Another reason stated was the social stigma and the the abuse of power by cops that stemmed from the Section’s provisions.

In response to this petition, the Government, in 2003, argued that the State can interfere with matters pertaining to the private domain in the “interest of public safety and protection of health and morals”. It further stated that “Objectively speaking, there is no such tolerance to practice of homosexuality/lesbianism in Indian society”, and on analysis of criminal jurisprudence, Section 377 has only been used to punish sexual abuse of children and compensate for lacunae present in the IPC Sections pertaining to Rape. Further, the government stated that an unlawful act cannot be rendered as lawful if it was consensual, and deletion of the Section would “open the floodgates of delinquent behaviour and be misconstrued as providing unbridled license for the same”.

In 2004, a division bench of the Delhi Court comprising of then CJI BC Patel and Justice BD Ahmed dismissed the petition, claiming it to have no cause of action as there was no prosecution pending against the petitioner, in addition to holding that a petition which is a mere academic challenge cannot be entertained. A review petition filed at the same forum was also rejected, and hence the matter was escalated to the Apex Court. This dismissal order was set aside by a 2 judge Supreme Court bench on appeal in 2006, and the matter was remanded back to the Delhi High Court as it warranted consideration and should not have been dismissed as per the grounds cited by the Delhi High Court in 2004.

2009: Delhi High Court reads down Section 377

In 2009, establishing a significant advancement of bodily rights and interests of the queer community, a two judge division bench of the Delhi High Court featuring then Chief Justice AP Shah and Justice S Murlidhar declared Section 377 to be unconstitutional, as the criminalisation of consensual sexual acts between adults within a private sphere as violative of the principals enshrined within Articles 14, 15 and 21. Apart from relying upon domestic jurisprudence, the judgment demonstrated a lot of comparative analysis with references to verdicts from the European Court of Human Rights, the Republic of Ireland, South Africa and the USA. It further relied upon progressive international legal frameworks including the Yogyakarta Principles and the 2008 Declaration of Principles of Equality produced by the Equal Rights Trust, in addition to upholding the values propounded by instruments of customary international law such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR).

The Koushal challenge: 2013 reinstatement of Section 377 by Supreme Court

This verdict was challenged via a Special Leave Petition in the Supreme Court in 2009, by Suresh Kumar Koushal, an astrologer, who was joined by a slew of other appellants claiming the validity of Section 377.  They contended that the High Court had severely erred in holding the Section to be violative of Articles 14, 15 and 21 as the evidence for discrimination faced by homosexuals as well as the section’s negative implications on campaigns against HIV were insufficient to adjudicate upon the constitutionality of statutory provisions. They further claimed that the Section did not infringe upon a person’s right to privacy as well, as privacy could not be treated against existing laws. Further, they argued that decriminalisation would be detrimental to the nation’s social structure as well tempt young people to indulge in homosexual acts, therefore eroding the institution of marriage.

The verdict, pronounced by Justices GS Singhvi SJ Mukhopadhaya, allowed the appeal, and overturned the High COurt’s groundbreaking order, finding it “legally unstable”. It held that the High Court though had the authority to determine the constitutionality of laws, it must exercise self restraint, and it’s analysis should have been guided by the presumption of constitutionality. Further, it agreed with the appellants contention of the evidence produced being “wholly insufficient”, with the precedents relied upon by Naz Foundation being instances of non-consensual acts, hence not lending any veracity to their arguments.

Further, it upheld the constitutionality of the classification drawing distinctions between those who indulge in sexual intercourse in the hetero-normative sense and those who do so “against the order of nature”. This established the section to be line with the Articles of the Constitution pertaining to equality as well.

Curative petition and after

In January this year, a curative petition against the Koushal judgement was admitted and referred to a five judge constitutional bench. With the petitioners being prominent members of civil society who are admittedly homosexual, the issue pertaining to their locus has been laid to rest. Further, this petition was filed in pursuance of the landmark Puttaswamy verdict which held privacy to be a fundamental right enshrined within Articles 14, 19 and 21. With a 9-judge bench holding “the right of an adult to choose their sexual partner as is intrinsic in their fundamental right to life under Article 21”, the petitioners seek addressal of two issues; whether Section 377 is unconstitutional, or whether it should be read down by the Courts, in congruence to the holding of the Koushal judgement, but restrict it’s applicability from punishing consensual acts which are sexual in nature within a private sphere.

The matter is due to be heard tomorrow onwards  by a bench consisting of Chief Justice Dipak Misra, and Justices AM Khanwilkar, DY Chandrachud, RF Nariman and Indu Malhotra.

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