Day 4: Historic challenge to constitutionality of Section 377 in Supreme Court begins: Live updates with The Leaflet


Vikram Doctor on the implications of various judgments on 377


Anand Grover submitted a brief rejoinder pertaining to a respondent’s submission about NACO’s online listing, stating it to be incomplete as not only MSMs but female sex workers and vulnerable communities are also provided with condoms.

He concluded his arguments by claiming that the reading down of Section 377 would lead to the rise of a new breed of sex workers.

The Counsel then further submitted that transsexuals are attracted to men for the purpose of fulfilling their carnal needs, and Section 377 only affected MSM and bisexual men. Claiming that there was no data demonstrating homosexuals to be criminalised  by Section 377 in the last thirty years, and the impugned Section is no sleeping giant.

He further stated that the NACO programme line lists, identifies and sensitised MSM community, and crores of public funds have been spent even though there have been no cases of their harassment.

To this the CJI responded by stating that the word intercourse had a broad meaning.

This was followed by the counsel for Suresh Kumar Koushal, who argued for Section 377’s retention. He stated that as Section 376 did not use the word carnal, it gives no added meaning to Section 377. Further, he argued that Section 377 did not cover lesbians or female bisexuals and hence women are not affected by this provision.

While concluding, he also stated that striking down Section 377 will not remove the stigma attached to homosexual acts.

Sharma further argued that when people indulge in unnatural acts, they are bound to have injuries. Hence, legalising such unnatural acts would violate Section 322 which pertains to to voluntarily causing grievous hurt.

He then referred to the Directive Principles of State Policy stating that that interests of LGBT community have to be balanced against interests of the society. Reading out Article 39A, he contended that there were disabilities in society, but the solution them is not to abolish certain acts.

He further stated that there exists a distinction between natural and unnatural, and there was no data to suggest that lives of the LGBT improved till the Naz judgement was not set aside, or harmed post it being set aside.

Mr HP Sharma then started arguing on behalf of another intervenor, submitting that reading down Section 377 would affect the institution of marriage as there are no laws to save a marriage if a husband wants to indulge in homosexual acts. He submitted that the IPC assumed is that married men would not indulge in homosexual acts, so one cannot define the liberty that they may claim.

Arguing that privacy cannot be allowed to become an unruly horse, he urged the Court to look at the extent to which right to privacy may be extended as the vested right trusts the citizens to uphold some morality which they should not abuse. Radhakrishnan concluded by asking whether the State can interfere or not if terrorists are holed up in a flat?

He further stated the need to uphold public morality, and stated that privacy cannot be extended to indulgence in unnatural offences and carriers of HIV. He further stated that rampant homosexuality for money will corrupt the younger generation, as sexual organs were used for functions beyond their designated ones, rendering it undignified.

He then proceeded to read sections from the IPC that relate to punishing spread of  infection or diseases dangerous to life. He also submitted such sexual acts to be prohibited by the Manusmriti.

Mr. Radhakrishnan reads provisions from the IPC that relate to punishing spread of infection or diseases dangerous to life

— The Leaflet (@TheLeaflet_in) July 17, 2018

Radhakrishnan then raised concerns about homosexuals being responsible for spreading AIDS in the US. This was countered by Justice Indu Malhotra remarking that hat STDs are also prevalent in heterosexuals and Justice Chandrachud, who talked about how men working outside villages have unsafe sex and on their return spread it to their spouse. He said the problem was not intercourse, but unsafe intercourse.

Radhakrishnan further submitted that acts mentioned in Section 377 as undignified, and derogatory to the constitutional concept of dignity. He further argues that it does not target LGBT communities.

He states that the chilling effect on exercise of sexual orientation as part of privacy and dignity is problematic, claiming the observations made in the Puttasamy judgement about the Koushal judgement prejudice its intervenors.

Post lunch, Counsel for another intervenor continues his arguments stating that Section 377 criminalises only the act. It is merely regulatory, regardless of gender identity. He then read out portions from the recent Govt of NCT Delhi v UOI judgement about constitutional morality.

Proceedings of the third day of hearings


Proceedings of the second and first day of hearings

George then concludes with a submission for a reading down of Section 377, only to make the offences under it bailable and non-cognisable.

George then concludes with a submission for a reading down of Section 377, only to make the offences under it bailable and non-cognisable.

Justice Nariman too responded with an analogy of prostitution to question an absolute ban. He said the same could be extended to prostitution, because  If is legalised and regulated, it would ensures the sex workers’ right to health.

George then asked the Court not to treat the Yogyakarta Principles as the Magna Carta. He then proceeded to read the amicus brief in Lawrence v Texas stating that it details how homosexual relations lead to STDs. This was followed by Justice Chandrachud reiterating his privacy judgement where he noted that acceptance and information is what ensures that health and related diseases are kept in check. He also referred to the policy in South Africa vis-a-vis AIDS.

This was followed by the CJI remarking that George’s reading the principles is slightly wrong, the principles state that they may live and stay together as family but doesn’t talk about marriage.

George further argued that it will also have an effect on religious freedom and submitted that the Yogyakarta principles talk not just about family but also other rights regardless of sexual orientation. Justice Nariman responded by saying that the Principles also state that a family may exist regardless of marriage.

George then stated that in Koushal verdict, the Court had held that the legislature was to amend the IPC and remove Section 377 from the statute, to which Justice Nariman responded by stating the Court’s duty to strike down any provision violative of fundamental rights. He further stated that the whole object of fundamental rights chapter was to empower the Courts to strike down laws which otherwise may be allowed by a majoritarian government.

George further submitted that the Court cannot legislate as a principle of law. He then addressed the petitioner’s argument about the right to intimacy as the right to marriage by submitting that the European Court of Human Rights had held that right to marry not to be a conventional right.

He contended that unnatural offences under Section 377 are allowed in lieu of present consent, it would have a cascading effect on many other legislations. Justice Nariman responded by stating that the provision could be read as holding bestiality as an unnatural offence and sexual acts with minors as an offence.

George’s written submissions clearly appear to carry hate speech content vis-a-vis the LGBT community, and the CJI asking him to read Don Quixote’s poetry to understand metaphysical love.

Justice Chandrachud says that the website references made in Mr. George’s written submissions clearly appear to have hate speech content vis-a-vis LGBT

— The Leaflet (@TheLeaflet_in) July 17, 2018

George then proceeded to propose a solution to deal with Section 377. He read out portions from a study which stated that persons showing same sex attraction during adolescence do not show it as adults. He also read out para 85 of the NALSA judgement where the Court held recognition of gender rights important to enjoy civil rights. He submitted that while interpreting a penal statute attention has to be paid to what has been said and what has not been said in the statute, countering the petitioners’ demand to introduce new words into the Section.

Mr. George says that sexual orientation is of abstract nature and such an abstract concept cannot be read into Article15

— The Leaflet (@TheLeaflet_in) July 17, 2018