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The Constitutional validity of the Section 377 of IPC has been challenged in the SC. Additional Solicitor General (ASG) Tushar Mehta has submitted an affidavit on behalf of the centre before the five judge bench, specifically stating that Centre will not contest in the petition and it will accept the judgement of the court.
Although Mr. Mehta raised his personal concern regarding the statement given by Justice D.Y. Chandrachud stating that as in the Hadiya case, right to choose sexual partners was granted similarly right to choose same sex partners must also be accepted. To this ASG argued that such liberty will lead to incest and relationship within prohibited degrees which is unlawful under Hindu Marriage Act of 1955. To this concern of ASG, Chief Justice Misra stated that “in such case the marriage would be null and void.”
ASG argued that if a person accused of bestiality says that it is his sexual orientation, then what will be the law? Justice Chandrachud pointed that here the main question is regarding the choice of same sex partners, two consenting adults. There is no fundamental rights related to sexual orientation, but to choose sexual partners is definitely a right which our Constitution has given, acts like incest and bestiality are definitely unlawful. He also mentioned that the question over here is that whether two consenting adults choosing same sex partners are committing a crime under section 377 or the section in itself is unconstitutional? The main motive behind the proceedings was to guarantee protection under Articles 14 and 21 of the Indian Constitution, to all consenting adults who are in a same sex relationship. The ASG rested his pleadings after placing all the concerns in the court.
Advocate Saurabh Kirpal laid emphasis on the judgements given in NALSA, Hadiya case and Shakti Vahini case, he highlighted that Article 14, 19 and 21 includes the right to choose one’s sexual partner.
Advocate Maneka Guruswamy stressed on how section 377 restricts freedom of expression and the right to form associations of sexual minority under Article 19 of the Indian Constitution. She referred Sakal Paper v. UOI case which states that Constitution has to be interpreted in a wider sense. The rights given in the Constitution has to be interpreted by the courts in broader view. She quoted the American Court Justice Kennedy in Obergefell v. Hodges, same sex was legalised by the majority stating that the generation that wrote Bill of Rights was not aware of the extent of freedom, therefore they had entrusted a charter protecting the rights of all persons to enjoy liberty.
She further stated that section 377 includes sex based stereotypes which was restricted in Anuj Garg v. Hotel Association of India (girls and boys both were given consideration for the job of bartenders). She submitted her arguments stating that this is not about sexual acts, it is more about love that is between two consenting adults.
DAY 2, SESSION 2
The proceedings were resumed after the break in matter relating to the Constitutional validity of Section 377 of IPC. Advocate Guruswamy argued that the provision in IPC cannot be treated as an exception to Article 19 of Indian Constitution. She referred S. Khushboo v. Kanniammal, the appellant voiced her support for pre-marital relationship and live-in relationship, the court protected her freedom of speech and expression.
She further submits that section 164 (1) (d) of the Companies Act, 2013, explicitly says that a person who is convicted of any offence relating to moral turpitude, shall never become director of the company. This petition is in reference to all those people who want a status of citizens of India and not as unconvicted people.
Senior Counsel Anand Grover stated that the petition is just not filed with the purpose of invalidate the section, nut it is filed in light of the principles of justice, liberty, security etc. He highlighted that there is a distinction between touching with consent and touching without consent.
Justice Jayna Kothari submitted that the NALSA judgement ( rights of transgender was recognised by the Apex Court) cannot come into effect until the section 377 doesn’t struck down. She cited the example of her client stating that her client was born male, but she lives like a female and now she is married. Now she can be sued under section 377 because of her being involve sexually with her husband. Another example stated by her was of Criminal Tribes Act of 1871 ( repealed) , which refers transgenders as kidnappers and castration of children, subsequently same has been introduced in the Karnataka Police Act, 1963 and the Telangana Eunuchs Act, 1919. Chief Justice remarked that if this section will be removed, then definitely all the laws ancillary to it will automatically collapse.
Senior Counsel Shyam Diwan submitted his arguments stating that right to intimacy must be read in the ambit of Article 21 of the Indian Constitution. He stated that LGBT community are “invisible community” until they develop a relationship which is prohibited in society, then they are referred as “second class citizens.” Further arguments will be heard by the court on the next date of hearing.
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