[Breaking] Centre will not contest challenge to Section 377: Live Updates from Supreme Court

At long last, the Central government has clarified its stance on Section 377 of the Indian Penal Code. On the second day of the hearing of the petitions challenging the provision, Additional Solicitor General Tushar Mehta revealed that the Centre will not contest the challenge to Section 377.

The affidavit submitted to the Supreme Court today states,

“…so far as the constitutional validity Section 377 to the extent it applies to “consensual acts of adults in private” is concerned, the Union of India would leave the said question to the wisdom of this Hon’ble Court…

…in the event this Hon’ble Court is pleased to declare Section 377 viz. “consensual acts of adults in private”, to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.”

However, the Centre revealed that should the Court delve into issues other than those specified above, it will file a detailed affidavit with respect to those issues.

“In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same without giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice.”

The hearings in the challenge to Section 377 of the Indian Penal Code continued today in the Supreme Court for the second successive day.

The matter is being heard by a Constitution Bench of Chief Justice of India Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

Yesterday, Senior Advocates Mukul Rohatgi and Arvind Datar made their submissions for the petitioners. Counsel for the petitioners will continue with their submissions today. The Central government is represented by Additional Solicitor General Tushar Mehta.

Live updates follow:

#Section377 Day 2 today at 11.30 am. Will be tweeting live from @barandbench
— Murali Krishnan (@legaljournalist) July 11, 2018

#Section377: Day 2 hearing commences.
— Bar & Bench (@barandbench) July 11, 2018

ASG Tushar Mehta says wont contest provision as regards consensual sex between adults and leaving it to the Bench, but seeks clarification on bestiality.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: ASG Tushar Mehta also says it will have to file detailed reply if court goes into other aspects like civil rights and liabilities.
“Please do not say anything which can be construed as affecting civil rights, inheritance, marriage rights etc”, ASG Mehta requests SC.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy commences arguments. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “It violates Articles 15, 19, 21 of the Constitution.
Section 377 is arbitrary and unconstitutional
I will answer the question of Justice Nariman on proportionality”, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “It discriminates on the basis of gender of the partners”, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy is appearing for IIT students and alumni.
Guruswamy says their prayer is limited to consensual sex between adults and not about incest etc.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy now dealing with the question of proportionality which was raised by Justice Rohinton Nariman.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy refers to Manifest Arbitrariness as elucidated by Rohinton Nariman himself in the judgment of Triple Talaq case (Shayara Bano).
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy on violation of Article 15.
“Articles 15 and 16 are the teeth of equality protection envisaged by Constitution.”
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “Argument is simply this:
It is a violation of Article 15 because the discrimination revolves around the sex of the partner”, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “It is based on Victorian morality that people should have sex only with opposite gender since sex is only for procreation”, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Guruswamy also refers to notification dated July 2 by Indian Psychiatric Society which states homosexuality is not a pschiatric disorder.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: When the IIT students/ alumni came to me with the case, I was struck by how Section 377 had affected many of their lives, submits Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “These people deserve to be protected by their court, their Constitution and their country”, @MenakaGuruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy now referring to Canadian Supreme Court’s decisions.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: The Canadian decision was relied upon by Constitutional court of South Africa in National Coalition for Gay and Lesbian Equality to recognise the vulnerability of people due to pre-constitutional morality, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: The criminalisation is based on laws before the dawn of the Constitution, says @MenakaGuruswamy .
“How strongly must we love to withstand the terrible wrongs of Suresh Kumar Koushal”, Menaka makes passionate plea.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: It denies #LGBT citizens equal participation in profession, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “It violates their right to seek employment including State employment and Constitutional offices”, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: The immediate aftermath of NALSA judgment was the extra ordinary number of transgenders who ran for public offices, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Bench rises for lunch. #SupremeCourt
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Section 377 violates right to form an association under Article 19, Menaka Guruswamy.
ASG Tushar Mehta objects to this, says beyond the scope of this hearing.
Justice Nariman says "she has a right to argue, you can respond if you want". #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Section 377 violates right to form an association under Article 19, Menaka Guruswamy.
ASG Tushar Mehta objects to this, says beyond the scope of this hearing.
Justice Nariman says “she has a right to argue, you can respond if you want”. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “Right to form an association?” ASG Mehta expressing surprise.
“Why not”, says Justice Rohinton Fali Nariman. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: “Any disqualification linked to S. 377 will be automatically lifted if provision is struck down”, CJI Dipak Misra. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: #LGBT persons are unable to form an association as they have to identify themselves as LGBT. This means they are denied many benefits which they can otherwise avail as an association, Menaka Guruswamy.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: This is not simply a reference to larger Bench, this is for Constitutional interpretation under Article 145(3), says Menaka Guruswamy. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: This case is about a how this court can change social morality to Constitutional morality, Menaka Guruswamy. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Menaka Guruswamy concludes, Anand Grover commences arguments. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: This case is about Constitutional values and not just about Section 377, Anand Grover. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: The IPC is known to be very precise but Section 377 is different because it is not so, says Anand Grover.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Anand Grover reads the provision, says nobody can understand the scope of Section 377. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Anand Grover dealing with how courts have interpreted “carnal intercourse against order of nature”.
The orifice for penetration was interpreted to mean insertion even between thighs of another person came to be penalised, says Grover. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Fundamental rights have to be given expansive interpretation, they cannot be given restrictive interpretation. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Grover referring to Justice Rohinton Nariman’s exposition of arbitrariness. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Grover now dealing with impact of the provision on transgenders in the context of gender identity. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: One of the major issues is there is denial of access to justice, says Grover.
A lot of gay men suffer from extortion, blackmailing especially in cases where people use dating apps, says Grover. We have dealt with huge number of such cases.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: The core issue in this case is values like liberty, equality and dignity, Grover. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Grover speaking about the case of Dr. Ramchandra Siras of Aligarh Muslim University, who was gay and how his privacy was invaded.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Anand Grover concludes his arguments. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Jayna Kothari commences her submissions.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Jayna Kothari arguing on NALSA judgment and gender identity. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Eunuchs are suspected of unnatural offences under Section 377, says Kothari when CJI Dipak Misra quizzed her on relevance of gender identity. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Jayna Kothari makes brief mention of discriminatory State statutes against Eunuchs. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Why is S. 377 which on the face of it applies to both males and females is discriminatory under Article 14?
Kothari takes the case of her client who is born a male but identifies herself as female.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: She is married but any sexual interaction with her husband will be hit by section 377, says Kothari.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Jayna Kothari rushes through submissions on Articles 19 and 21, concludes her arguments.
Next is Sr. Adv. Shyam Divan for an intervenor, Voices Against 377. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Right to intimacy should be declared part of right to life, Shyam Divan. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Sexuality and sexual rights are part of human rights; homosexual conduct between two consenting adults is not against the order of nature, Shyam Divan. #LGBT
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Technically Section 377 criminalises certain acts only but in its application, it is not used against consenting sexual acts between heterosexual adults but is used against #LGBT community, Shyam Divan.
— Bar & Bench (@barandbench) July 11, 2018

#Section377: Bench rises for the day, hearing to continue tomorrow.
— Bar & Bench (@barandbench) July 11, 2018

Here is a brief summary of the arguments made yesterday:

Mukul Rohatgi

Ramifications of this case is not just on sexuality, it will have impact on how society looks at these people, about perception, about livelihood and jobs for such people
Suresh Kumar Koushal is wrong; I will take you through Naz Foundation judgment of Delhi High Court, NALSA judgment of SC and Privacy judgment of SC
The issue of sexual orientation and gender are different; this case deals only with sexual orientation and has nothing to do with gender. We are saying that this is not a matter of choice but it is something innate and we are born with it
Section 377 uses the word “order of nature”; What is this order? It is the Victorian morals of 1860s. As society changes, values change; what is moral 160 years ago might not be moral today
Whether a pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people ought to remain?
The effect of S. 377 in our country is mostly on men though it appears sex-neutral
Union of India did not file an appeal against the Delhi HC judgment
Do not restrict it to S. 377, further directions are needed for protection of my life, property

Arvind Datar

1860 Code was simply imposed on India and it did not represent even the will of the British Parliament
Is there any judgment of this court that pre-independence laws will not have benefit of presumption of Constitutionality?”, CJI Dipak Misra asks. “No no”, says Datar
Chandrachud J. says Courts might not have same deference for pre-constitutional laws which they have for post-constitutional laws, due to absence of Parliamentary will
The fact that Union of India did not choose to appeal against Delhi HC judgment is all the more reason for it to be struck down
Section 377 criminalises a class of people; to say that it criminalises an act and not a class of people is not correct
The object of penal code is to identify an offence and punish for the same so that it acts as a deterrant. But when it is a natural orientation, then how can it be an offence
Regarding Article 21, Datar argues that Puttuswamy judgment says privacy encompasses decisional autonomy. It is a natural corollary that sexual orientation is also covered by that

View the updates on yesterday’s hearing here.

Read the Centre’s affidavit in the matter:

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Centre-affidavit-Section-377.pdf

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Read the written submissions by advocate Menaka Guruswamy

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Menaka-Guruswamy-Written-Submission.pdf

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Read the written submissions by Senior Advocate Shyam Divan