Homosexual behaviour not an aberration but a variation, Indu Malhotra J: Day 3 of Section 377 hearing

Published on:

12 Jul 2018, 5:56 am

1 min read

The hearings in the challenge to Section 377 of the Indian Penal Code continue today in the Supreme Court for the third 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 Shyam Divan and Anand Grover, and advocates Jayna Kothari and Menaka Guruswamy made their submissions for various petitioners and intervenors.

The Central government has clarified its stance on the provision; Additional Solicitor General Tushar Mehta revealed that the Centre will not contest the challenge to Section 377, insofar as it applies to “consensual acts of adults in private”.

Read here for a comprehensive breakdown on what happened on Day 2, and here for a summary of the hearings on Day 1.

Live updates follow:

#Section377: Bench assembles, Day 3 hearing commences. #LGBT #SupremeCourt
— Bar & Bench (@barandbench) July 12, 2018

#Section377: #ShyamDivan resumes his submissions, arguing on positive dimension of Article 14. #LGBT #SupremeCourt
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Refers to para 62 of #TripleTalaq judgment which states “equality before law” in Article 14 derived from UK while “equal protection of law” is from 14th amendment of US.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: ‘Equality before law’ is the negative content while ‘equal protection of law’ connotes positive content of Article 14, says #ShyamDivan to argue for the necessity of positive action on the part of the State for homosexual persons.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: This is an opportune moment for the Court to issue additional declarations [aside from striking down S. 377], #ShyamDivan. #LGBT #SupremeCourt
— Bar & Bench (@barandbench) July 12, 2018

#Section377: It has a chilling effect on freedom of expression under Article 19, #ShyamDivan.
Divan relies on #Puttaswamy judgment (privacy), #ShafinJahan (Hadiya), Lawrence v. Texas.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Supreme Court should not have re-criminalized Section 377 (after Delhi HC struck it down) because of the tremendous adverse impact it has, #ShyamDivan
— Bar & Bench (@barandbench) July 12, 2018

#Section377: #ShyamDivan concludes, CU Singh begins arguments. #LGBT #SupremeCourt
— Bar & Bench (@barandbench) July 12, 2018

#Section377: This community feels inhibited to go for medical aid due to prejudices against them, remarks Justice Indu Malhotra. #LGBT
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Because of family pressures, societal pressures etc. they are forced to marry opposite sex and it leads to bi-sexuality and other mental trauma, remarks Justice Indu Malhotra
— Bar & Bench (@barandbench) July 12, 2018

#Section377: It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behaviour; It is not an aberration but a variation, Justice Indu Malhotra making a strong case against Section 377.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Justice DY Chandrachud refers to Section 21a of Mental Healthcare Act which expressly prohibits discrimination on the ground of sexual orientation.
“So Parliament itself now recognises them”, Justice Chandrachud.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: If Parliament recognises that sexual orientation cannot be ground for discrimination for mental health treatment, then can it be any different when it comes to other issues, CU Singh.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Is there any provision in any other statute in this country wherein Sexual orientation has been considered not normal or a mental disorder, asks CJI Dipak Misra. #LGBT
— Bar & Bench (@barandbench) July 12, 2018

#Section377: @MenakaGuruswamy says while the Supreme Court has recognised live-in relationships and its jurisprudence has been that of substantive equality, there is discrimination (towards homosexual persons) in the application of law like domestic violence laws.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: 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 State has resorted to affirmative action, submits CU Singh
— Bar & Bench (@barandbench) July 12, 2018

#Section377: It is a declaration against such discrimination that we are seeking, CU Singh
— Bar & Bench (@barandbench) July 12, 2018

#Section377: We request Your Lordships to articulate something positive as it will go a long way in ending discrimination, CU Singh concludes
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Desai speaking about Fraternity and how it is developing continuously as a concept.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Ashok Desai uses the words “utter chaos created by this law”.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Desai tracing the treatment of homosexuals by various ancient civilisations
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Desai on how perception towards homosexuality changed with the coming of Abrahamic faiths
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Desai places reliances on Puttaswamy and NALSA, Subramanian Swamy judgments.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: The whole problem before Your Lordships is human condition.
— Bar & Bench (@barandbench) July 12, 2018

#Section377 Desai says just because very few people are convicted under this law, is no ground to support this law.
— Bar & Bench (@barandbench) July 12, 2018

Bench re-assembles after lunch; Krishnan Venugopal resumes.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Krishnan Venugopal making submissions about how thr provision is used to harass LGBT persons who don’t speak up due to stigma and societal perceptions.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Has a chilling effect on freedom of expression.
Macaulay while introducing this provision said he does not even want to discuss about this provision as according to him it was revolting and odious, submits Krishnan Venugopal.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: It offers a legal basis to supress alternate sexuality, Krishnan Venugopal.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Prevents LGBT from exercising freedom of association and hence violates Article 19. #LGBT #SupremeCourt
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Krishnan Venugopal concludes.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: ASG Tushar Mehta now making submissions on behalf of the Central government.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Mehta urging Court to stick to the Constitutionality of the provision.
He has handed over some document to the court saying persons with different perceptions look at things differently.
— Bar & Bench (@barandbench) July 12, 2018

#Section377:
“Look at some liberal Constitutions. We will point out some countries on map where you need to look at”, Justice Chandrachud to one counsel who was for retaining Section 377.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: “We don’t decide Constitutional issues by referendum”, CJI Dipak Misra to another counsel who tried to make arguments based on “popular opinion”. #LGBT
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Advocate Manoj George making submissions for intervenors in support of Section 377.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Manoj George appearing for intervenors seeks equitable time for making submissions.
No no, says CJI Dipak Misra.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: George trying to counter reliance by petitioners on Yogyakarta principles.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: No senior to hold a brief for my side, maybe because of the issue involved, says George who is appearing for two Christian associations supporting Section 377.
“There was a u-turn by govt which causes serious concerns for public at large”, says Manoj George.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Manoj George reading former ASG PP Mehta’s submissions in Koushal to prove his point that govt has taken a u-turn.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: This is not a lis between two parties.
IPC falls under concurrent list. If any of the States wanted to amend it, they would have done so. They have not, says George.
That does not mean its Constitutionality cannot be challenged, CJI Dipak Misra.
— Bar & Bench (@barandbench) July 12, 2018

#Section377: Hearing concludes for the day, intervenors will be heard for an hour on Tuesday next week. #LGBT
— Bar & Bench (@barandbench) July 12, 2018

Supreme Court of India

Section 377

Gay Rights