#Section377 day 4 of hearings to commence soon
Counsel for Apostolic Alliance of Churches & Utkal Christian Association continues his arguments
He submits that courts shouldn't add or delete words to the statute that are not expressly provided therein
The counsel, Mr. Manoj George submits that consent between two adults is the subject matter to be looked into while analysing Section377
He submits that section377 penalises carnal intercourse
He says 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
He submits that there is a differential between acts against order of nature and those are natural
Justice Chandrachud says that it strikes at the ground of Article 14, whether there is an order of nature
Mr. George says that s375 may also have situation where consent is obtained by putting the person in fear of death
Justice Nariman says that these are categories of what would constitute consent which is not free
Mr. George says that s377 does not take into account consent
Justice Nariman says that original Macaulay's act included consent, even though it incurred lesser punishment. Later the provision including consent was dropped
Justice Nariman asks Mr. George what is order of nature
Mr. George responds that per se order of nature has not been defined
Justice Nariman says that simply put ,any sexual act which results in reproduction would be in order of nature
Justice Chandrachud also questions what would constitute carnal intercourse
Mr. George reads out Article 15 and says that it prohibits discrimination on grounds of sex and not sexual orientation
Justice Nariman says that this is where the Yogyakarta principles have to be read to include sexual orientation within the ambit of sex
Mr. George says that there are many types of orientations and that it is not as simple as LGBT
Justice Nariman says that in the NALSA judgment the court has read sex to include transgender #Section377
Mr. George submits that Yogyakarta principles were drafted where an assembly of NGOs said that these principles have to be looked into
CJI says that whatever the principles stated in Yogyakarta principles, if it fits into our constitutional framework, it may be referred as well
The CJI says that article 15 covers not gender but sexual orientation
Mr. George says that sexual orientation is of abstract nature and such an abstract concept cannot be read into Article15
Mr. George adds that sexual orientation has not been defined in the constitution or any other statute
The CJI says that traditionally man and woman come together to continue the human race.
Mr. George submits that reading sex to include sexual orientation would leave space for uncertainty
Justice Chandrachud says that the website references made in Mr. George's written submissions clearly appear to have hate speech content vis-a-vis LGBT
Justice Chandrachud reads out a portion from the submission which seemingly indicates that a person would be attracted to someone who reciprocates that attraction. He says this clearly is not sexual orientation
The CJI says that he should read the poetry of Don Quixote to understand metaphysical love
Mr. George responds that he would want to propose a 'solution' to deal with #Section377
He reads out portions from a study saying that persons showing same sex attraction in adolescence do not show same sex attraction as adults
Mr. George next reads some Paras (85) from the NALSA judgment. It relates to the part where the court says that recognition of gender rights is important to enjoy civil rights
Mr. George next submits that petitioners are asking to introduce new words in the statute
Justice Nariman refers to the case of Alan Turing when there was an order for chemical castration of all homosexual and he committed suicide
Mr. George submits that while interpreting a penal statute attention has to be paid to what has been said and what has not been said in the statute
Mr. George submits that it is settled principle of law that court cannot legislate
He further submits that petitioners argued right to intimacy as right to marriage. He submits that the European human rights court has held that right to marry is not a conventional right
He submits that if such Unnatural offence as under #Section377 is allowed with consent, it would have cascading effect on many other legislations
Justice Nariman says that the provision could be read as holding bestiality as Unnatural offence and sexual act with persons under 18 yrs of age as an offence
Mr. George says that the judgement in Kaushal the Supreme Court had stated that it is for the legislature to amend the IPC and remove s377 from the statute
Justice Nariman says that the moment any provision violates any of the fundamental rights, it is the duty of the court to strike it down #Section377
J. Nariman says that justice Jackson in the case of West Virginia v board of education had said that the whole object of fundamental rights chapter is to empower the court to strike down law which otherwise may be allowed by majoritarian govt
Mr. George says that there will be am effect on religious freedom. That this is not from the Victorian era but comes from the bible
Mr. George submits that Yogyakarta principles talk not just about family but also many other rights regardless of sexual orientation
Justice Nariman says that the principles state that a family may exist regardless of marriage
The CJI says that Mr. George is slightly wrong in reading the principles. The CJI says that the principles state that they may live and stay together as family but doesn't talk about marriage
Mr. George says that the court shouldn't rely on the Yogyakarta principles as though it's the Magna Carta
He further relies on the amicus brief in Lawrence v Texas. He says that it details how homosexual relations would lead to STDs
Justice Chandrachud says that in his privacy judgement he noted that acceptance and information is what ensures that health and related diseases are kept in check. He refers to the policy in south Africa vis-a-vis AIDS
Justice Nariman said that same would apply to prostitution. If it is legalised and regulated it would ensures the sex workers' right to health. He says absolute prohibition must be questioned.
Mr. George submits that the only reading down of s377 could be to make the offences under s377 bailable and non-cognisable
Mr. George concludes.
Counsel for another intervenor will now make his submissions
The counsel Mr. Radhakrishnan says that he will refer to the NCT judgement in context of constitutional morality
The bench rises for lunch
