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Supreme Court: The Bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J allowed the NGO Naz Foundation to withdraw its curative plea challenging the 2013 Supreme Court verdict that had again criminalised gay sex between two consenting adults. The Foundation had told the Court that the curative plea has now become infructuous in view of the five-judge constitution bench verdict in 2018 which had set aside the 2013 judgement.

After the 2013 verdict, the Supreme Court had dismissed the review plea that had laid the foundation to file the curative petition. However, a five-judge constitution bench headed by then Chief Justice Dipak Misra entertained fresh petitions seeking decriminalising of the consensual gay sex. It had on September 6 last year unanimously struck down part of the British-era law and held that Section 377 of the Indian Penal Code that criminalised consensual gay sex was “irrational, indefensible and manifestly arbitrary”. The bench said:

One defines oneself. That is the glorious form of individuality.”

Drawing an analogy, the Court had held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail.

(With inputs from PTI)

Case BriefsSupreme Court

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. began the hearing on Day-4 of the constitutionality of Section 377 IPC.

Advocate Manoj George representing two Christian groups and supporting Section 377 stated that Section 377 is constitutionally valid’.

He said that the “carnal intercourse criminalised is b/w man and man, b/w woman and woman, b/w man and animal or between woman and animal”.

“If Your Lordships says there is nothing called “order of nature” with or without consent, then the entire Section will go”, submitted Manoj George.

DY Chandrachud J. intervenes and asks under Article 14, is there anything called order of nature?

Nariman J. points to Yogyakarta principles stating “Don’t forget, we have already expanded sex to include transgender“.

CJ Dipak Misra: ‘Whatever the principles stated in Yogyakarta principles, if it fits into our constitutional framework, it may be referred as well’.

“We have already expanded the scope of the meaning of sex. You need to respect the natural process of law, if any sex is against the order of nature, it doesn’t lead to procreation”: Nariman J.

Anything to be done with Section 377 IPC should have been done by the legislature not by the Court’: Advocate George

‘If we are convinced that it is unconstitutional, it is our duty to strike it down’: Nariman J.

CJ Dipak Misra: If Section 377 IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here! You cannot impose your sexual orientation on others without their consent.

Advocate George concluded his arguments on the note that ‘If anything needs to be done, it should be done by legislature’.

Senior Advocate Radhakrishnan began with his arguments by referring to Apex Court’s judgment in Govt. (NCT of Delhi) v. Union of India, in regard to the constitutional morality aspect.

Radhakrishnan also pointed out that ‘Homosexuals spread sexually transmitted diseases like HIV’.

Chandrachud J.: The cause of sexually transmitted diseases is not sexual intercourse.

Advocate Harshvir Pratap Sharma: ‘We know there is corruption everywhere. Will we abolish the police because it is corrupt? Likewise, should we strike down a law because it affects a few?’

Suresh Kumar Koushal’s lawyer submitted that ‘Section 377 needs to be retained as it is.

Supreme Court reserved the judgment on the constitutionality of Section 377 IPC, 1860 by concluding the hearing for today.


Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. continue to unravel the path to justice on Section 377 IPC, 1860 on the third day of the proceedings.

Senior Advocate Shyam Divan resumed with his arguments representing ‘Voices against 377’ and started with the explanation towards the positive dimension of Article 14 of the Constitution of India. By placing reliance on Nariman, J. judgment on Triple Talaq, Shayara Bano v. Union of India; (2017) 9 SCC 1 which states “equality before the law” in Article 14 derived from the UK while “equal protection of the law” is from the 14th amendment of US.

‘Equal protection of the law’ connotes positive content of Article 14 whereas ‘Equality before the law’ is the negative aspect.

Shyam Divan also cited Lawrence v. Texas, 539 U.S. 558 (2003) – “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons”.

He also backed ‘Right to Intimacy’ quoting from South African Constitutional Court that the right to privacy covers right to maintain intimate relations unaffected by the law.

“Supreme Court should not have re-criminalized Section 377 (after Delhi HC struck it down) because of the tremendous adverse impact it has”: Senior Advocate Shyam Divan

Indu Malhotra J. making her stance clear on Section 377 said that ‘Homosexuals face a lot of pressure from parents, society, etc. That is why they turn into bisexuals; it carries huge social ramifications’.

‘It is not just human beings who alone indulge in homosexual acts, many animals also show homosexual behaviour; it is not an aberration but a variation’.

‘This community of LGBT feels inhibited to go for medical aid due to the prejudices against them.’

CJ Dipak Misra observed ‘LGBT themselves feel discriminated because of they are treated differently. They feel stigma because of criminality attached to it.’

Chandrachud, J. ‘We have created a societal environment that creates a discrimination of these individuals. If Section 377 goes let’s hope such societal stigmas change.’

Senior Advocate C U Singh backed his arguments by stating that 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.’

Further, while concluding his arguments, he stated that “They (LGBT) continue to suffer a disproportionate mental problem because of the stigma attached to it.”

Senior Advocate Ashok Desai began by stating that existence of LGBT community is a part of our culture hence not alien to Indian culture. While talking about the ‘stigma’ he cited an article written by late Leila Seth, J. whose son is a homosexual for whom she said that my son is a criminal as per law after the Delhi HC verdict was reversed by the Supreme Court.

‘Homosexuality is existing in society and civilisation has accepted this.’

‘Same-sex is not selfish. They don’t want to produce children.’

He also argued that the Court needs to recognise the concept of fraternity as the LGBT community is humiliated terribly.

Mr. K. Venugopal submitted that fear of law is used to harass LGBT community. He also states that Section 377 is used as an excuse to impinge on freedom of expression.

Section 377 offers a legal basis to suppress alternate sexuality.”

While submitting his arguments, he also stated that Lord Macaulay while introducing this provision said he does not even want to discuss this provision as according to him it was revolting and odious. On concluding his arguments he cited Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court judgment which made same-sex marriage in USA legal.

ASG Tushar Mehta appearing for Union of India states that, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 cannot be interpreted to mean that Section 377 should exclude bestiality.

Mehta urged the Court to stick to the constitutionality of Section 377.

CJ Dipak Misra: ‘Court does not follow majoritarian morality but constitutional morality.’

“We don’t decide Constitutional issues by referendum”, CJ Dipak Misra to another counsel who tried to make arguments based on “popular opinion”.

“Look at some liberal Constitutions. We will point out some countries on the map where you need to look at”. Chandrachud, J. to a counsel arguing in support of Section 377 IPC.

No senior to hold a brief for my side, maybe because of the issue involved’ said George who was appearing for two Christian associations supporting Section 377. “There was a U-turn by the government which causes serious concerns for the public at large“, stated Manoj George appearing for one of the respondents.

Chandrachud, J. stated that it’s not a U-turn, pointing that the Delhi HC judgment wasn’t challenged.

An advocate submitted that private bill on Section 377 got defeated. Court said it doesn’t matter, Section377 can still be assailed on the parameters of Part III.

The Constitution Bench would continue with the arguments on 17-07-2018. [Navtej Singh Johar v. Union of India, WP (Crl.) No. 76/2016, order dated 12-07-2018]


Hot Off The PressNews

Supreme Court with its 5-judge Constitution bench comprising of CJI Dipak Misra, RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra JJ., would start the hearing in one of the most revolutionary and hovered Section 377 of the Indian Penal Code, 1860 in Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

Apex Court had criminalised the unnatural sex between two consenting adults in 2013 after the Delhi High Court had de-criminalized the same in  Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762in the year 2009, which eventually was reversed in Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.

Section 377 IPC, refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

Several pleas were filed challenging the re-criminalisation of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.