Section 377 IPC: Summary of the 4-day hearing [Read Written Submissions]
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Section 377 IPC: Summary of the 4-day hearing [Read Written Submissions]

Bar & Bench

The hearing in the challenge to Section 377 of Indian Penal Code concluded on July 17, 2018 in the Supreme Court.

The hearing had commenced on July 10, 2018 before a Bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chadrachud and Indu Malhotra and lasted for four days.

Introduced by the British during the colonial era, Section 377 penalises all sexual activities “against the order of nature“. Modelled on the then-existing English Buggery Act (1553), this provision effectively came to be used to criminalise sexual activity between homosexuals persons.

In 2009, the Delhi High Court read down Section 377 to decriminalise consensual sexual activity between adults in the Naz Foundation case. However,  in an appeal against the Delhi High court verdict, a Division Bench of the Supreme Court overturned this judgment in 2013 to reinstate sexual intercourse between homosexual persons as a criminal offence in the Suresh Kumar Koushal case.

Subsequently,  writ petitions came to be filed in the Supreme Court challenging the Constitutionality of the provision. This challenge was eventually referred to a Constitution Bench comprising Chief Justice Dipak Misra and Justices Rohinton Fali NarimanAM Khanwilkar, DY Chandrachud and Indu Malhotra.

Below are the arguments made by various lawyers appearing for the parties in the case.

PETITIONERS

Mukul Rohatgi for Navtej Singh Johar

  • Judgment in Suresh Kumar Koushal is wrong. Union of India did not file an appeal against the Delhi HC judgment, they also filed a review against the Supreme Court verdict.
  • The issue of sexual orientation and gender are different; this case deals only with sexual orientation and has nothing to do with gender.
  • Sexual orientation is not a matter of choice but it is something innate and people are born with it.
  • Section 377 uses the word “order of nature”. This “order” is the Victorian morals of 1860s. As society changes, values change; what is moral 160 years ago might not be moral today.
  • A pre-constitutional law not framed by our Parliament and which does not recognise the needs of our people should not remain.
  • The effect of S. 377 in our country is mostly on men though it appears sex-neutral.
  • Ramifications of this case are not just on sexuality. It will have an impact on how society looks LGTB persons. It is also about perception, about livelihood and jobs for such people.
  • Hence, the scope of the judgment should not be restricted to S. 377 and the Court should consider issuing directions for protection of life, property, civil rights of LGBT persons.

Arvind Datar for Keshav Suri

  • IPC was simply imposed on India, it did not represent even the will of the British Parliament.
  • 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 the Indian Penal Code is to identify an offence and punish for the same so that it acts as a deterrent. But when it is a natural orientation, then how can it be an offence?
  • Puttuswamy judgment regarding Right to privacy lays down that privacy encompasses ‘decisional autonomy’. It is a natural corollary that sexual orientation is also covered by such ‘decisional autonomy’.

Menaka Guruswamy for Anwesh Pokkuluri

  • Section 377 is arbitrary and unconstitutional. It violates Articles 15, 19 and 21 of the Constitution.
  • It violates Article 15 because the discrimination revolves around the sex of the partner.
  • Articles 15 and 16 are the teeth of equality protection envisaged by the Constitution.
  • Section 377 is manifestly arbitrary. It is based on ideas of Victorian morality that people should have sex only with opposite gender since sex is for procreation alone.
  • Notification issued by the Indian Psychiatric Society on July 2 states that homosexuality is not a psychiatric disorder.
  • LGBT citizens deserve to be protected by their court, their Constitution and their country.
  • Criminalisation of homosexuality is based on laws before the dawn of the Constitution.
  • Section 377 denies LGBT citizens equal participation in profession. It violates their right to seek employment including State employment and Constitutional offices.
  • Section 377 violates the right to form an association under Article 19. 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,
  • Though the Supreme Court has recognised live-in relationships and its jurisprudence has been that of substantive equality, there is discrimination (towards LGBT persons) in the application of laws like domestic violence laws.
  • Supreme Court should go beyond striking down Section 377 and issue directions for recognising the rights and liberties of LGBT persons.

Anand Grover for Arif Jafar

  • The case is not just about Section 377; It is also about Constitutional values and what the Preamble says.
  • The Indian Penal Code is known to be very precise but Section 377 is different because it is not so. Nobody can understand the scope of Section 377.
  • The expression in Section 377, “Carnal intercourse against the order of nature”, has been interpreted in various ways by courts. The orifice for penetration was once interpreted to mean that insertion of the penis even between thighs of another person, is against the order of nature.
  • Fundamental Rights have to be given an expansive interpretation, they cannot be given a restrictive interpretation.
  • One of the main issues is there is a denial of access to justice. A lot of gay men suffer from extortion and blackmailing especially in cases where people use dating apps etc. There are a large number of such cases and it never comes to light because of the apprehension of such victims to come out in open.

Jayna Kothari for Akkai Padmashali

  • Gender identity is relevant to the case in that eunuchs are often suspected of unnatural offences and are booked under Section 377.
  • There are discriminatory statutes against Eunuchs in certain States.
  • Section 377 violates Article 14. Kothari cited the example of her client, who was born male but identified herself as female. Although the petitioner was married, any sexual interaction with her husband was hit by Section 377.

RESPONDENTS

ASG Tushar Mehta for Central government

  • Centre will not contest the petitioners’ case as regards consensual sex between adults. It is leaving the same to the wisdom of the Supreme Court. However, clarification is needed on bestiality, which is also currently covered by Section 377.
  • Court should limit itself to the Constitutionality of Section 377 and should not go into other aspects like civil rights and liabilities of LGBT persons.

INTERVENORS

Shyam Divan for Voices Against 377

  • Right to intimacy should be declared as part of Right to life
  • Sexuality and sexual rights are part of human rights; homosexual conduct between two consenting adults is not against the order of nature
  • Technically, Section 377 only criminalises certain acts. However, in its application, it is only used against the LGBT community, and not against such sexual acts between consenting heterosexual adults.
  • Divan argues for the necessity of positive action on the part of the State for homosexual persons.
  • Article 14 has negative and positive dimensions.
  • “Equality before law” in Article 14 is derived from the UK, while “equal protection of law” is from the 14th Amendment of the US Constitution. Equality before law is the negative content, while equal protection of law connotes the positive content of Article 14.
  • This is an opportune moment for the Court to issue additional declarations (aside from striking down Section 377).
  • Section 377 has a chilling effect on freedom of expression under Article 19.
  • Supreme Court should not have re-criminalised Section 377 (after Delhi High Court struck it down) because of the tremendous adverse impact it has on LGBT community.

CU Singh for Alok Sarin

  • Section 21(a) of the Mental Healthcare Act, 2017 expressly prohibits discrimination on the ground of sexual orientation. If Parliament recognises that sexual orientation cannot be a ground for discrimination for mental health treatment, then can it be any different when it comes to other issues.
  • Having faced criminalisation for over 160 years, it is a huge step to strike it down. But whenever there has been historical deep-rooted discrimination, then the State has resorted to affirmative action.
  • The Court should make a declaration against such discrimination. Positive directions from the court will go a long way in ending discrimination as was the case with NALSA judgment.

Ashok Desai

  • Fraternity is a concept that is developing continuously.
  • “Utter Chaos” has been created by this provision (Section 377).
  • Perception towards homosexuality changed with the coming of Abrahamic faiths.
  • The whole problem before the Courts is a human condition.
  • Just because very few people are convicted under this law is no ground to support this law (Section 377).

Krishnan Venugopal for academicians from Central Universities based in Delhi

  • Section 377 is used to harass LGBT persons who do not speak up due to stigma and societal perceptions.
  • Section 377 has a chilling effect on freedom of expression.
  • When the provision was being introduced, Thomas Babington Macaulay said he did not even want to discuss this provision as according to him it was revolting and odious.
  • Section 377 offers a legal basis to suppress alternate sexuality.
  • Section 377 prevents LGBT persons from exercising freedom of association and hence violates Article 19.

ORIGINAL RESPONDENTS IN CURATIVE PETITION

Manoj George for Apostolic Alliance of Churches and Utkal Christian Council

  • No Senior Counsel was willing to hold a brief for my side, maybe because of the issue involved.
  • U-turn by the Central Government on the issue which causes serious concerns for the public at large.
  • IPC falls in the concurrent list. If any of the States wanted to amend it, they would have done so but they have not.
  • Consent is a word which is absolutely absent in Section 377, petitioners are saying this word has to be imported into the provision.
  • Sexual orientation has also not been defined either in Constitution or IPC. Words cannot be imported into the statute.
  • In interpreting a statute, the court should not add or delete words to the statute. It is the job of Parliament to re-draft, re-draw or enact provisions.
  • Anything which needs to be done to 377 in the manner sought by the petitioners, should be left to the Parliament.
  • Section 377 makes the following classification –  Carnal intercourse within the order of nature and Carnal intercourse against the order of nature. This is a reasonable classification with an intelligible differentia
  • If the Court holds that there is nothing called ‘order of nature’ with or without consent, then the entire Section will go.
  • Yogyakarta principles were framed by an assembly of NGOs which came together to state that principles should apply to 29 countries.
  • Based on a study by Washington based organisation on sexual orientation, “Idea that people are born with a sexual orientation is not supported by scientific evidence.” So it is not innate; the idea that they are born that way is not supported by science.
  • Section 377 is not based on Victorian-era morality as claimed by petitioners.
  • The entire Koushal case was based on AIDS, HIV issues. The petitioners have not talked a single word about it
  • If anything needs to be done, it should be done by the Legislature.

KS Radhakrishnan for Trust God Ministries

  • Gender identity and sexual orientation are not criminalised by Section 377. It criminalises certain acts and whoever commits those acts will be liable.
  • No issue with NALSA judgment, it is a perfectly good judgment.
  • The observations in para 146 of Puttaswamy judgment on Section 377 were made without hearing the intervenors and hence is a violation of principles of natural justice.
  • Section 377 is a modern medico-legal necessity to counter AIDS. Homosexuality has led to spread of HIV/AIDS in USA.
  • Fall out of Section 377 is that the family system which is the bulwark of Indian social structure since Rig Vedic times will be reduced to shambles.
  • If Section 377 is struck down, HIV/AIDS will spread rapidly; India will lose nobility, character, virtuousness.

Below are the written submissions of the lawyers who appeared in the matter.

Mukul Rohatgi

Mukul-Rohatgi-writtten-submissions.pdf
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Arvind Datar

Arvind-Datar-Written-Submissions-1.pdf
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Menaka Guruswamy

Menaka-Guruswamy-Written-Submission-1.pdf
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Shyam Divan

Shyam-Divan-written-submissions-1.pdf
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CU Singh

CU-Singh-written-submissions.pdf
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Krishnan Vengopal

Krishnan-Venugopal-written-submissions.pdf
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Manoj George

Written-submissions-Manoj-George.pdf
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Affidavit by Central government

ASG-Tushar-Mehta.pdf
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