[WATCH]
Vikram Doctor on the implications of various judgments on 377
The hearings on #Section377 conclude. Judgement reserved
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. Grover submits that the submission by respondent on line listing is incomplete, not only MSM but also female sex workers and vulnerable communities are provided with condoms
— The Leaflet (@TheLeaflet_in) July 17, 2018
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 concludes and mr. Anand Grover to give a brief rejoinder
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says that reading down #Section377 will lead to rise of new breed of sex workers
— The Leaflet (@TheLeaflet_in) July 17, 2018
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 says that there is no data that homosexuals have been criminalised using #Section377 in last 30 yrs and says that the provision is no sleeping giant
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He says that the NACO program line lists, identifies and sensitised MSM community. That crores of public funds have been spent on them and there is no case where they have been harrassed
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says that #Section377 only affects men having sex with men and bisexual men
— The Leaflet (@TheLeaflet_in) July 17, 2018
The counsel submits that transsexuals are attracted to men for the purpose of fulfilling their carnal needs
— The Leaflet (@TheLeaflet_in) July 17, 2018
To this the CJI responded by stating that the word intercourse had a broad meaning.
CJI says that the word intercourse has a broad meaning
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He says that #Section377 does not cover lesbians or female bisexuals and hence women are not affected by this provision
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says section 376 does not use the word carnal. He says that the word carnal in section 377 doesn’t give any added meaning
— The Leaflet (@TheLeaflet_in) July 17, 2018
He submits that #Section377 needs to be retained as is
— The Leaflet (@TheLeaflet_in) July 17, 2018
Now the counsel for Suresh Kumar Kaushal will submit his arguments
— The Leaflet (@TheLeaflet_in) July 17, 2018
Another intervenor says that in the event of striking down #Section377, for non consensual acts, the aggrieved persons would be left without any remedy
— The Leaflet (@TheLeaflet_in) July 17, 2018
While concluding, he also stated that striking down Section 377 will not remove the stigma attached to homosexual acts.
Mr. Sharma says that merely striking down #Section377 would not remove the stigma attached to homosexual acts
— The Leaflet (@TheLeaflet_in) July 17, 2018
The CJI says that there are cases where children leave their ailing parents at hospitals
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Sharma says that if two consenting men live together and one of them falls sick, what happens if the partner abandons him
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says the court has to balance fundamental rights of citizens and social and public interests.
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Sharma submits that the societal interest is to be taken as the individual’s interest
— The Leaflet (@TheLeaflet_in) July 17, 2018
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 says that when persons indulge in Unnatural act they’re bound to have injuries. Legalising unnatural act would violate section 322, IPC the provision relating to voluntarily causing grievous hurt
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Sharma says that petitioners have not shown a single instance of any harm to members of the LGBT community after the Naz foundation judgement was set aside
— The Leaflet (@TheLeaflet_in) July 17, 2018
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 reads Article 39A. He says there are disabilities in the society to a great extent but answer is not to abolish certain acts
— The Leaflet (@TheLeaflet_in) July 17, 2018
He refers to directive principles of state policy. He says that interest of LGBT community has to be balanced against interest of the society
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He compares #section377 with corruption and police. Says just because there is corruption one cannot abolish the body of police
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Sharma says that there is something which is natural and unnatural. Says there is no data to suggest that lives of the LGBT improved till the Naz judgement was not set aside
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He submits that on reading IPC the assumption is that married men would not indulge in homosexual acts, but once they do, how does one define the extent of liberty they claim
— The Leaflet (@TheLeaflet_in) July 17, 2018
He submits that reading down #Section377 would affect the institution of marriage. He says there is no law to save marriage if a husband wants to indulge in homosexual acts
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. H P Sharma on behalf on another intervenor commences his arguments
— The Leaflet (@TheLeaflet_in) July 17, 2018
He urged the court to look at the extent to which right to privacy may be extended. Says that can the state not interfere if terrorists are holed up in a flat.
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says that the right to privacy placed in every person also vests in them- trust to uphold certain morality, which they should not abuse
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Radhakrishnan says that despite the assigned function the sexual organs are being abused. Says that this is undignified.
— The Leaflet (@TheLeaflet_in) July 17, 2018
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?
Mr. Radhakrishnan says that he will read the judgement and adds that privacy right cannot be allowed to be an unruly horse
— The Leaflet (@TheLeaflet_in) July 17, 2018
He says that rampant homosexual activities for money will tempt and corrupt the young generation
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. Radhakrishnan continues. He says that there is a need to uphold public morality, and that right to privacy shouldn’t be extended to indulge in Unnatural offences and become carriers of HIV
— The Leaflet (@TheLeaflet_in) July 17, 2018
Mr. Radhakrishnan says regardless the content he has been reading exists somewhere. The bench questions whether it can rely on such documents
— The Leaflet (@TheLeaflet_in) July 17, 2018
Ms. Maneka points out that Mr. Radhakrishnan has been reading incorrect content citing it to be DSM-5
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He further submits that manusmriti prohibits such sexual acts
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
While Mr. Radhakrishnan insists that homosexuals were responsible for spreading AIDS in the US, Justice Indu Malhotra comments that STDs are also prevalent in heterosexuals
— The Leaflet (@TheLeaflet_in) July 17, 2018
Justice Chandrachud says that spread of HIV is also because men going to work outside villages have unsafe sex and when they return they spread it to their spouse. Problem is not intercourse but unsafe intercourse
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. Radhakrishnan submits that acts mentioned in #Section377 are undignified act derogatory to the constitutional concept of dignity and do not target LGBT communities
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
He submits that the observations made in puttasamy judgement in Kaushal prejudice the intervenors in the Kaushal matter
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Radhakrishnan reads out portions from the recent Govt of NCT Delhi v UOI about constitutional morality
— The Leaflet (@TheLeaflet_in) July 17, 2018
Court resumes
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Justice Nariman said that same would apply to prostitution. If it is legalised and regulated it would ensures the sex workers’ right to health. He says absolute prohibition must be questioned.
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. George says that the court shouldn’t rely on the Yogyakarta principles as though it’s the Magna Carta
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
The CJI says that Mr. George is slightly wrong in reading the principles. The CJI says that the principles state that they may live and stay together as family but doesn’t talk about marriage
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. George says that there will be am effect on religious freedom. That this is not from the Victorian era but comes from the bible
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
J. Nariman says that justice Jackson in the case of West Virginia v board of education had said that the whole object of fundamental rights chapter is to empower the court to strike down law which otherwise may be allowed by majoritarian govt
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
Mr. George says that the judgement in Kaushal the Supreme Court had stated that it is for the legislature to amend the IPC and remove s377 from the statute
— The Leaflet (@TheLeaflet_in) July 17, 2018
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.
The CJI says that he should read the poetry of Don Quixote to understand metaphysical love
— The Leaflet (@TheLeaflet_in) July 17, 2018
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
George then read out Article 15, claiming that it prohibits discrimination on grounds of sex and not sexual orientation, which was rebooted by Justice Nariman who stated that this is where the Yogyakarta Principles have to be read to include sexual orientation within the ambit of sex, further reiterating the NALSA judgment where sex was to include transgenders. George responded with asking for an examination of the Yogyakarta Principles’ veracity, as they were drafted by an assembly of NGOs.
CJI says that whatever the principles stated in Yogyakarta principles, if it fits into our constitutional framework, it may be referred as well
— The Leaflet (@TheLeaflet_in) July 17, 2018
This was followed by remarks by the CJI, who held Article 15 to cover not gender but sexual orientation, and held that the Yogyakarta Principles fit into our Constitutional Framework and hence could be referred to. George responded by stating that sexual orientation is of abstract nature and such an abstract concept cannot be read into Article 15, given that it is not defined by the Constitution or any statute. He further submitted that reading sex to include sexual orientation would leave space for uncertainty.Justice Nariman asks Mr. George what is order of nature
— The Leaflet (@TheLeaflet_in) July 17, 2018
Justice Chandrachud commented that the arguments pertaining to the order of nature strike at the ground of Article 14, about whether an order of nature exists or not.
Upon the issue of consent, Justice Nariman mentioned the categories that constitute consent which is not free, with George responding that consent is not taken into account by Section 377. Justice Nariman then stated that Macaulay’s original draft did include consent, albeit with lesser punishment, but the provision was later dropped.
Addressing “order of nature”, Justice Nariman inquired about it’s definition, to which George responded that it has not been defined per se. Here, Justice Nariman observed that ,any sexual act which results in reproduction would be in order of nature. Justice Chandrachud also inquired as to what constitutes carnal intercourse.
Justice Chandrachud says that it strikes at the ground of Article 14, whether there is an order of nature
— The Leaflet (@TheLeaflet_in) July 17, 2018
Manoj George, Counsel for Apostolic Alliance of Churches & Utkal Christian Association continued with his arguments. He submitted that courts should not add or delete words that are not expressly provided in the statutes. He further submitted that consent between two adults is the subject matter to be looked into while analysing Section 377.
He then addressed Section 377 in light of the term “carnal intercourse”, claiming that it criminalises intercourse between two men, two women, between a man and an animal, and between a woman and an animal. HE submitted that there exists a difference between acts against order of nature and those that are natural.
Counsel for Apostolic Alliance of Churches & Utkal Christian Association continues his arguments
— The Leaflet (@TheLeaflet_in) July 17, 2018