[Day 2]: Section 377| Supreme Court on the road to end Victorian morality?

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. without any delay resumed the proceedings on Section 377 IPC, 1860 today.

ASG Tushar Mehta placed the Government’s side by stating that he won’t contest the provision concerning consensual sex between adults but would want clarity on bestiality by leaving the decision of decriminalization on the wisdom of court.

Chandrachud J., giving his stance in the midst of the proceedings stated that “We don’t want a situation in which the police arrest the homosexuals enjoying a walk on Marine Drive and charge them under Section 377.”

Learned advocate Saurav Kripal appearing for one of the petitioners stated that “Sexual orientation is part of individual rights.”

Advocate Maneka Guruswamy representing IIT students and alumni commenced by saying that Section 377 violates the fundamental rights of the citizens including Articles 14 (equality), 15 (discrimination on sex) and 19 (liberty). By placing her focus primarily on Article 15, she placed reliance on Justice J S Verma Committee recommendations on sexual orientation.

“It was the Victorian morality that people should have sex only with opposite gender since sex is only for procreation.”

Further, Guruswamy referred to the Indian Psychiatric Society of India’s notification of July 2 stating that homosexuality is not a disorder. By making a plea for her clients, Guruswamy stated that “These young people need to be unafraid to love and be loved, and they should be protected by this Court.” One of the contentions placed was that it violates the right to seek employment including State employment and constitutional offices as well.

How strongly must you love knowing you are unconvicted felons under Section 377 IPC?” : Maneka Guruswamy

Chandrachud, J. said that law should be ahead of society and particularly in this kind of relationship.

CJ Dipak Misra stated that “A declaration that this relationship is constitutional will remove the ancillary disqualification for people joining services, contesting elections. It will no longer be seen as moral turpitude.”

Guruswamy contended that Section 377 violates the sexual minorities’ rights to form social, political or any other form of association and concludes by stating that they need “recognition”.

Advocate Anand Grover representing Arif Jafar who was caught by police for promoting condoms amongst men commenced his arguments by stating that Section 377 has a very wide scope, which can’t be understood by anybody. He further stated that in 172nd Law Commission Report, repeal of Section 377 had been suggested.

“If the object isn’t fair, statute isn’t sustainable.”

Grover also contended that “carnal intercourse” in Section 377 is wider than “sexual intercourse” in Section 375. He concluded his arguments by saying that “Some community including LGBT didn’t get independence. They are being oppressed even after independence of India.”

CJ Dipak Misra stated that “A consensual relationship cannot materialise without the exercise of free choice.”

Further, Senior Advocate Shyam Divan representing “Voices against 377” stated that 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.

The hearing concluded for 11-07-2018 and to resume tomorrow i.e. 12-07-2018. [Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 11-07-2018]

[Source: The Hindu]

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