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#Section377 Day 4: Hearing in section 377 matter will commence shortly. #LGBTQ @TheDeltaApp
#Section377 Day 4: The respondents submitted a written petition to the bench. #LGBTQ @TheDeltaApp
#Section377 Respondents state that the Yogyakarta principles are not a treaty or a law and it has no value. Nariman J. followed by saying that they apply to us as per the NALSA judgment of this court. #LGBTQ
#Section377 Respondents submitted that this declaration (decriminalization of 377) will have cascading effects on personal law. #LGBTQ
#Section377 Respondents submit that consent between 2 adults should be the subject matter while reading down section 377. #LGBTQ
#Section377 The Respondents submitted that section 377 takes into account 3 acts - Carnal intercourse against the order of nature with same sex, with opposite sex and with animals. #LGBTQ
#Section377 Respondents submit that there is nothing such as an order of nature. Chandrachud J. clarified that Article 14 of the Constitution defines something like order of nature #LGBTQ
#Section377 Respondents bring the bench's attention to Section 375 to discuss the concept of consent. Nariman J. clarified that there are 3 concepts - consent, free consent and no consent. #LGBTQ
#Section377 Nariman J. asked the respondents to tell him what 'order of nature' meant as per them? According to Nariman J. one of the definitions can be: order of nature means an act which does not lead to procreation. Asked the respondents to define order of nature. #LGBTQ
#Section377 Respondents submitted that Article 15 of the Constitution only mentions sex and not sexual orientation. Nariman J. interjected to state that that is where the Yogyakarta principles come in #LGBTQ
#Section377 Nariman J. clarified that we have already expanded the meaning of the word sex to include transgenders in the NALSA judgment. #LGBTQ
#Section377 The respondents went on to state that the Yogyakarta principles are not binding on this court. The CJI clarified that this court may consider such principles as they are internationally accepted and also when they are as per our Constitutional principles. #LGBTQ
#Section377 CJI: Sex in itself does not cover the concept of gender identity. Thus certain international principles may be looked at for guidance in order to protect human rights. We need to acknowledge the same #LGBTQ
#Section377 Natural needs to be understood in anatomical ways. Whether this is a good way to read Constitutional Principles? Natural might not always mean what we can conceive #LGBTQ
#Section377 Chandrachud J. brought attention to the respondents submission where they had quoted a 'hate website' in one of the footnotes #LGBTQ
#Section377 CJI questioned the respondents what do they mean by platonic and romantic relationship? #LGBTQ
#Section377 Respondents state that sex and sexual orientation cannot be read into Article 15 of the Constitution. #LGBTQ
#Section377 The respondents submit that they have a solution: people are born as homosexuals is not supported by science. There are no biological explanation for women sexuality. Respondents state that this is not science. #LGBTQ
#Section377 NALSA recognizes that in Article 15 the term sex is elastic and also includes transgenders and Yogyakarta Principles will apply #LGBTQ
#Section377 Respondents quote the NALSA judgment to bring about the point that before recognizing their sexual orientation, their gender identity needs to be defined #LGBTQ
#Section377 Nariman J. responded by saying that Article 15 is elastic enough to include sexual orientation within the ambit of the meaning of the word sex. #LGBTQ
#Section377 Respondents submit that the petitioners are transporting the words consent and non consent which are not present and cannot be imported into section 377. #LGBTQ
#Section377 The court cannot recast, reread and add words into a statute. The court cannot legislate itself and only has the power to interpret what the statute already mentions. #LGBTQ
#Section377 The respondents submit that once the section 377 is read down it will effect personal laws of our country. #LGBTQ
#Section377 The respondents submit that this court does not have power to change the statute and that power solely lies with the legislature. #LGBTQ
#Section377 Nariman J. explained that the moment the bench is convinced that something is against the Fundamental Rights, it is their duty to strike it down. #LGBTQ
#Section377 Nariman quoted the US judgment - West Virginia Board of Education v. Burnette J. and went on to say - we won't wait for majoritarian governments to enact or not to enact laws which are violative of fundamental rights. #LGBTQ
#Section377 CJI clarified that the respondents were wrongly reading the Yogyakarta Principles. The principles do not equate family with marriage. One can live together and stay together without getting married. #LGBTQ
#Section377 Nariman J. states that right to family and right to form a family are recognized as 2 separate fundamental rights as per the German Constitution. #LGBTQ
#Section377 CJI further went on to clarify that in NALSA judgment the Bench has upheld the Yogyakarta principles only to recognize gender identity and sexual orientation within the meaning of the word sex.
#Section377 Chandrachud J. explained in his privacy judgment, it was seen that because gays live in hiding they do not get proper health care for HIV/AIDS. Once the public recognizes their rights, it leads to better care and protection. #LGBTQ
#Section377 Hence, by letting gays survive, it will not lead to proliferation of HIV/AIDS but will lead to better health care and protection. #LGBTQ
#Section377 Respondents continue that - gender identity and sexual orientation have not been criminalized as per section 377, it is just certain acts which are criminalized. #LGBTQ
#Section377 The court will resume after lunch. #LGBTQ
#Section377 Sr. Adv. Radhakrishnan continues for an intervener: Quotes the Govt. of NCT vs. UOI, discusses the concept of constitutional morality. #LGBTQ
#Section377 Adv. Rk: argues that infraction of principles of natural justice will take place if intervener is not heard. In Koushal, we were heard extensively. #LGBTQ
#Section377 Adv. Rk: argues that this act is an undignified act and derogatory to the Constitution. #LGBTQ
#Section377 Chandrachud J. : states that HIV is transmitted also in heterosexual couples. That means we should criminalize sexual intercourse between them as well? He also went on to say that it is about unprotected intercourse and not about exposure to contract HIV. #LGBTQ
#Section377 Chandrachud J.: We can find a lot of hateful speech on the internet, the question is whether a constitutional bench should take it on record for consideration. #LGBTQ
#Section377 This was in reply to an objection made by @MenakaGuruswamy where she pointed out that a submission made by the intervener belonged to 2 different sources. #LGBTQ
#Section377 Adv. Rk: Quotes constitutional debates from the constituent assembly. Referring to a discussion which states that laws should be enacted in the light of public mortality. #LGBTQ
#Section377 Adv. Rk: There is an abuse of organ in this case and that it is undignified as per the Constitution. #LGBTQ
#Section377 Adv. Rk has concluded his arguments on behalf of the intervener. #LGBTQ
#Section377 Respondents submitted that consenting unmarried men indulging into sexual activities affect the society and institution of marriage. Chandrachud J. questions how does it affect the institution of marriage, if two consensual adults indulge in the act of intimacy?
#section377 Respondents further submitted in the light of Keshavananada Bharti judgment that the scope of Fundamental Rights cannot be over broadened, Directive Principles of State Policy and Fundamental duties must also be taken into into notice in order to strike down a law.
#section377 Respondents then went on to submit that when two consenting adults involve in unnatural/ irrational act, it is meant to hurt which comes under the purview of section 322 of IPC, voluntary grievous hurt.
#Section377, Respondent then submitted that it is the case of societal interest. He cited the Keshavananda Bharti case and discussed about societal interest and individual interest.
#Section377, Respondents further submitted that after acknowledging live-in relationships the number of rape cases have increased.
#Section377, Respondent on behalf of Suresh Kumar Koushal submitted that S377 as it is framed today need not be struck down.
#Section377, Sr. Adv. on behalf of Mr. Kaushal then submitted that whether section 377 directly affect the LGBTQ community?
#Section377 Sr. Adv on behalf of Mr. Koushal then submitted that the identity and orientation of transgenderes have already been recognised by the Court, and he therefore submitted that section 377 does not affect them anymore.
#Section377 Sr. Adv on behalf of Mr. Koushal concluded the submissions on behalf of respondents stating that kindly consider the situation of Jawaaans, men in hostels and jails that if the bench decriminalises such an act there are chances of misconduct.
#section377, The Bench has finished hearing arguments on the matter and has reserved its judgment on the same. #LGBTQ @TheDeltaApp
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