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Day 2, #Section377 hearing will begin shortly.
#Section377 UOI, Adv Tushar Mehta began by submitting that the UOI will not contest and leave the Constitutional validity of consensual sex on the Bench.
#Section377 TM: submitted that the center acknowledges J. CJ understanding that right to choose your partner is a FR.
J. Chandrachud clarified that right to choose your partner is a FR, however in the matter of LGBTQ community, it’s not a matter of choice but it’s innate.
TM: submitted that sapinda relationships in Hindu law, incest and bestiality should not be allowed under the garb of consensual sex.
CJI clarified the stance of the bench stating that the scope of this hearing does not cover marriage, adoption and maintenance etc. #section377
J Chandrachud.: further clarified that sexual relationships among same sex couples should be allowed in the country under A21 and there should be no moral policing around it.
Adv Saurabh Kirpal submitted that it is the intent of the petitioners that consensual sexual relationships between same sex couples be protected under Arts. 14, 19 & 21. And he left it to the bench to define the content of those rights. #Section377
CJI questioned the counsel saying whether they are pressing for all sorts of consensual sexual relationships including incest. To that, Adv. SK replied this matter only deals with decriminalizing s.377 and the rights of LGBTQ community.
SK: further submitted that the rights defined under Hadiya case should apply to this case as well. #section377
SK: cited ShaktiVahini case to submit that the rights to choose your partner manifests from Arts. 19 & 21 of the Constitution. #section377
SK: went on to quote the ShahinJahan judgment, which says that the choice of a person is her individual identity and the curtailment of such a right will destroy individual institution and the constitution should protect such rights. #Section377
SK: referred to the NALSA Judgment to read the definition of sexual orientation and said that it is paramount to their identity and it shall be protected under Constitution. #Section377
Adv. maneka guruswamy continued the arguments on behalf of petitioners. She submitted that she will be arguing today against section 377 of IPC in the light of Articles 14,15, 19 & 21.
MG: submitted that #Section377 violates article 19(1a) and 19(1b) under Constitution of India. The section chills the freedom of speech and expression of the LGBTQ community. She further stated that she will demonstrate the same to the Court.
MG: she referred to the prayers of her writ petition. This is a writ petition filed by alumni, graduates and current students all from the LGBTQ community.
MG referred to her prayer and stated that Declare #section377 is violative of article 14 as it is against equality. 2. Decriminalize section 377 as it violates articles 14,15,19&21.
MG: She referred to the shaira Bano’s case and stated that reasonableness runs like a thread across the FRs chapter of the Constitution of India and there is no scope of any arbitrariness. #section377
MG: submitted that pursuant to shaira bano and many more cases that equality is surmount. And the court has always emancipated basic structure and fundamental rights even when the legislative intent has failed. #Section377
MG: continued to argue in the light of Article 15 of the Constitution.
MG: quoting Sakal Newspapers case submitted that the court must interpret the Constitution in the broadest sense and not in a narrow manner. The court must interpret the Constitution in the manner that it allows its citizens to enjoy its rights to the fullest. #section377
MG: #Section377 discriminates on the basis of sex.
MG: goes on to quote an Israeli judgment.
MG: submitted that #section377 promotion discrimination on the basis of sex based stereotype. She further submitted that this section violates article 15.
MG: went on to quote Anuj Garg vs hotel association of India. #section377
MG: submitted that Article 15 (c) includes the interpretation of the word sex to cover sexual orientation. #Section377
MG: went on to quote a report by Indian Psychiatric Association, which states that homosexuality is not a disease. #section377
MG: went on to discuss the harassment and mental trauma faced by her petitioners (IITIans) due to their sexual orientation. #Section377
MG: went on to discuss the plight of her petitioners, how their sexual orientation has miserably impacted their lives. #section377
MG: submitted that all these young people deserve their rights and to be loved. She went to say that business of life is protected under Articles 14,15, 16, 19 & 21 of the Constitution of India.
MG: went on to quote a decision by Constitutional court of South Africa. She further submitted that for far too long petitioners have been vulnerable. And stated that love must be Constitutionally recognized. #section377
MG: cited an interesting by product of NALSA judgment. She submitted that the no. of transgenders who ran for office increased by a remarkable number as the judgment instilled enormous confidence in them and ensured them of their right to equality. #Section377
CJI: stated that how you feel freedom is an individual concept.
Hearing will resume shortly with MG’s remaining arguments , the court has adjourned for lunch. #Section377
J Chandrachud: stated that #Section377 impacts employment opportunities for LGBTQ community in both public and private sector.
@MenakaGuruswamy: continues arguing on behalf of the petitioners. In the light of Article 19(2) of the Constitution of India, she submitted that #Section377 is not a reasonable restriction under this Article.
MG: further submitted that #section377 is violative of Article 19(1c), right to form association.
ASG Tushar Mehta: rebutted MG stating that right to form association does not fall under the ambit of #Section377. J. Nariman responded to it saying that let the petitioner finish her arguments before the state’s rebuttal.
MG: continued her submissions, she stated that for time immemorial tangible benefits are disallowed homosexuals. #Section377
MG: further stated that if homosexuals are once convicted they cannot be appointed as Directors of Companies. #Section377
MG: then went on to make her final submissions. She submitted that the Constitutional interpretation of the Prayer is under Articles 145(3) and 32 of the Constitution. #Section377
MG: submitted 6-8% of the population of our country, which equates to almost 1.5 million of people are coined to be from the LGBTQ community have come to this Constitutional bench not just to be declared as unconvicted felons but to be acceptd as full citizens of this nation.
MG: passionately submitted that Incremental conception of rights is what calls for the bravery of these individuals, she went on to mention that their courage deserves recognition. #Section377
MG: finally stated that this judgment is about collective conscience of this country. She humbly submitted that vulnerable groups have come to the SC, they are moral and dignified individuals who rightfully deserve their FRs. #Section377
Sr. Adv. Anand Grover continued to argue on behalf of the petitioners after @MenakaGuruswamy
AG: expressed his happiness about this hearing and stated that this case is not only about decriminalisation of S.377, it is about our Constitutional values. This case highlights what our Preamble says. #Section377
AG ( Anand Grover) : then went on to discuss about the history of #Section377.
AG: submitted that the phrase “order of nature” has been interpreted to mean natural, thereby causing distress to the #LGBTQ community.
AG: then submitted that even after the NALSA judgment it’s important for the Court to still explain effect of sections 375 and 377 on Transgender community. #Section377
AG: mentioned about the harassment that Arif Jafar suffered at the hands of society and police due to his sexual orientation. #Section377
AG: Argues that since after the amendment to IPC post the Nirbhaya case, section 375 covers anal sex, then consensual anal sex between adults is legal as per section 375. #Section377
J. Chandrachud clarified that since as per section 375, consensual anal sex between a man and a woman is legal, thereby section 377 now only covers relations between same sex couples. #section377
#Section377 AG: as per the US Supreme Court, the right to form associations, also includes associations in the form of personal relationships, as covered in India under Art. 19(1)(c).
#Section377 AG: A lot of gay men are suffering from blackmail and extortion. Says that on dating apps, gay people suffer from extortion. #LGBTQ
#Section377 CJI: Clarifies that one person's natural inclination might be different from someone else's. That doesn't mean that the Constitution shall protect only one kind of people. #LGBTQ
#Section377 CJI: There is an impact theory - if section377 is to remain in the statute book, then it will impact certain sections of society in a negative manner. #LGBTQ
J. Chandrachud clarifies to AG that though in urban centers and educated India, the acceptability of homosexuality might be rampant, he was not sure about how much of that understanding has permeated down to the rural areas of India. #Section377 #LGBTQ
#Section377 Adv. Jayna Kothari will continue arguments from the petitioners side. #LGBTQ
#Section377 JK: She questioned the bench about what is meant by gender identity, in the light of the NALSA judgment. #LGBTQ @TheDeltaApp
#Section377 JK: Certain regional laws like in Telangana, presume that eunuchs are supposed to be engaging in unnatural activities, as under section 377. She continues to state that transgender persons are usually considered to be kidnappers, castraters etc. #LGBTQ @TheDeltaApp
#Section377 JK: Under NALSA decision, for the first time gender identity was guaranteed as a right.
#Section377 Sr. Adv. Shyam Divan is going to continue arguments on behalf of the petitioners. He's representating - 'Voices Against 377'. #LGBTQ
#Section377 SD: continues to argue against #Section377 in the light of articles 15 (1&2) of the Constitution of India. While acknowledging the arguments made by Adv. Guruswamy and Sr. Adv. Datar submits that they wish "sex" under Art. 15 to be interepreted as sexual orientation.
SD: humbly submits that there should be a suitable Declaration of rights which ensures that there should be no discrimination on the basis sexual orientation while accessing education, Healthcare, employment or any other service/ opportunity. #Section377
#Section377 SD: Discussed the concept of invisibility, i.e. homosexual people in as much as they physically appear are the same with all other people. But once they express their sexual orientation, they become visible and are discriminated against because they are different.
SD: finished his arguments for the day submitting that constitutionality of S.377 must be tested with higher level of scrutiny subject to Article 14 of the Constitution. He requested the Court for 10 more minutes from tomorrow's proceeding to submit his arguments Rt. To intimacy
#Section377 The court is adjourned for the day and arguments from the petitioners side will resume tomorrow. #LGBTQ
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