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Sai Deepak J @jsaideepak
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1. Hearing under way in #377IPC. Arguments being submitted on behalf of Christian intervenors. The Court is examining the meanings of "order of nature" and "carnal intercourse". Justice Nariman enquires from the Counsel the definition of "order of nature".
2. The Counsel for Christian intervenors submits that #377IPC is Constitutionally valid. He submits that he has not been able to find the meaning of "order of nature". Justice Nariman observes that perhaps "order of nature" could mean "that which leads to procreation".
3. Justice Chandrachud weighs in on the meaning of "carnal intercourse" and asks what is the need for the word "carnal". He notes that since "carnal" means lustful and "intercourse" itself assumes existence of lust, why add "carnal" to "intercourse" #377IPC.
4. The Bench is examining the nature and value of Yogyakarta principles and whether they are binding on India. #377IPC
5. The CJI now weighs in on "order of nature" and asks if the issue is to be approached based on physical anatomy and procreation or sexual orientation of the mind. #377IPC
6. Justice Chandrachud draws attention to a document filed by the Counsel for Christian intervenors which appears to have been sourced from a hate portal, putting the Counsel on the defensive. #377IPC
7. The Counsel for Christian intervenors then proceeds to make the submission that the assertion or assumption that homosexuals are "born that way" is scientifically untrue. #377IPC
8. The Counsel for Christian intervenors submits that while the word sex is elastic and can accommodate genders other than the male and the female, it must not be replaced with or equated to "sexual orientation" in interpreting Section #377IPC.
9. The Counsel for Christian intervenors submits that striking down Section #377IPC would lead to a cascading and adverse effect on Christian personal laws and statutes which govern them.
10. The Counsel for Christian intervenors submits that whether or not Section #377IPC must remain in the statute book, must be left to the Legislature.
11. Justice Nariman responds - "The moment we are convinced that something is against fundamental rights, we will strike it down and will never leave it to the Legislature to decide" #377IPC
12. Justice Nariman quotes Justice Jackson from the West Virginia judgement to support his view that protection of fundamental rights is the primary mandate of Courts and where their violation is made out, Courts should act and not leave it to the Legislature. #377IPC
13. The CJI adds that consent is the fulcrum of Section #377IPC which is expressly recognised in the provision and the Court need not add it to the provision.
14. The Counsel for Christian intervenors submits that striking down Section #377IPC would have a bearing on freedom of religion for Christians because #377IPC is not a Victorian import, but in fact has its basis in Leviticus and Genesis of the Christian Bible.
15. Therefore the Counsel for Christian intervenors submits that if Section #377IPC were to be struck down as being unconstitutional, it would adversely affect the freedom of religion of Christians.
16. Justice Nariman retorts "You don't want us to treat Yogyakarta Principles as magna carta, but you want us to act as the Pope". #377IPC
17. Counsel for Christian intervenors submits that legalising same sex relations could lead to greater incidence of AIDS. #377IPC
18. Justice Chandrachud disagrees with the Counsel and notes that allowing gay relations don't lead to increase in incidence of AIDS, the compulsion of hiding same sex relations in fact contributes to incidence of AIDS, thereby affecting public health. #377IPC
19. Counsel for Christian intervenors concludes his submissions. Submissions will be made post lunch on behalf of another set of Christian intervenors. #377IPC
20. Senior Advocate Shri Radhakrishnan begins submissions on behalf another set of intervenors. #377IPC
21. Senior Advocate Radhakrishnan is submitting on behalf of Christian intervenors Trust God Ministries who support Section #377IPC.
22. Senior Advocate Radhakrishnan submits that homosexual sex is an "abuse of the organ" and leads to AIDS. He cites the American Society of Psychiatry on behalf of Trust God Ministries that homosexuals are responsible for spread of AIDS in the society (!). #377IPC
23. Justice Chandrachud immediately responds that unprotected sex is responsible for spread of AIDS, not same sex relations. He says going by the logic of Mr Radhakrishnan, anyone who has a same sex orientation must be prohibited by having sex. #377IPC
24. Ms. Menaka Guruswamy points out that the excerpt Mr. Radhakrishnan was reading out from is an extract from the write up of a far-right Christian organisation and not by any American Society although both the documents were stapled together. #377IPC
25. Mr. Radhakrishnan concedes the mistake and says the error was inadvertent, but stands his ground on the point being made. He further submits on behalf of Christian intervenors that the institution of marriage will affected by legalising homosexuality. #377IPC
26. Mr. Radhakrishnan submits on behalf of Christian intervenors that legalising homosexuality will lead to corruption of young minds and Indian society. #377IPC
27. Mr. Radhakrishnan submits on behalf of the Christian intervenors that the Court must respect the primordial requirement of order in the society and must observe restraint with respect to the constitutionality of Section #377IPC
28. Mr. Radhakrishnan again reiterates on behalf of Christian intervenors that homosexuality is an abuse of the organ and indulgence in an undignified act which the Court cannot legalise. #377IPC
29. Justice Nariman responds that assuming that Mr. Radhakrishnan is correct in his position that homosexuality is evil, even then the Court has the duty to strike down the greater evil if it is convinced that the existence of Section #377IPC is the greater evil.
30. Mr. Radhakrishnan has concluded his submissions on behalf of Trust God Ministries. #377IPC
31. Counsel for intervenor Suresh Kumar Kushal commences submissions defending Section #377IPC. He points out that thus far no data has been placed on record to show that Section #377IPC has tangibly affected the lives of the LGBT community. Therefore,this is an academic enquiry.
32. Counsel for Suresh Kumar Kaushal submits that striking down Section #377IPC would lead to legalising incestuous relationships.
33. Counsel for Suresh Kumar Kaushal submits that when two women get physically intimate,it is not technically intercourse & therefore Section #377IPC wud not apply to lesbians.The absence of penetration in lesbian sex,according to him,takes it out of the purview of intercourse.
34. The Counsel further asks where is the question of prosecution of homosexuals under Section #377IPC when the Central Government has been funding awareness programmes for homosexuals since 1984. The Counsels submits that Section #377IPC is like a braindead person.
35. The Counsel further submits that striking down Section #377IPC will give rise to a new breed of sex workers.
36. Rejoinder submissions being made by Senior Advocate Mr. Anand Grover on behalf of Appellants/Petitioners. #377IPC
37. Arguments concluded. Written submissions to be filed. Judgement reserved on Section #377IPC.
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