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The Supreme Court bench of Chief Justice Dipak Misra and Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra on Tuesday (July 17), concluded hearings petitions on the constitutional validity of section 377 of the IPC and for striking it down. The court also reserved its judgment on the same.

The court has asked all counsels for and against to file their written submissions by Friday, which means that there is a good likelihood of the judgment being delivered early next week.

Today, as hearings for teh fourth day began, the court was told by the respondent that the one primary thing to be concerned about was consent.

The respondent focused on paragraph 60 of the NALSA judgment. Senior counsel Radhakrishnan said that Section 377 refers to the carnal intercourse between two consenting adults as against nature.

The respondent talked about carnal intercourse against the order of nature with:

  1. Same sex
  2. Opposite sex
  3. With animals

He said that this was the reasonable classification.

Tejh counsel said that It was only an issue of consent. “Even if the court doesn’t recognise the act to be against the order of nature, then it is violative of right to privacy between two consenting adults.”

To this Justice Nariman said: “Against the order of nature” would mean sex between consenting adults which would not result in “procreation”. He said that some meaning has to be fixed.

He said it was all about two categories, while talking about section 375:

  1. Consent
  2. Free consent

The judge again said that in the NALSA judgment the scope of the word “sex” has been already elaborated so as to include transgenders within the scope.

At this the CJI reminded: “International principles are not binding upon us if we are not a signatory nation. But part IV can be made in compliance with the same.”

The lead counsel submitted that sex is not equivalent to the sexual orientation. He said: “We should look into what natural is. Natural is always towards the path of procreation.”

He said that more than 70 sexual orientations exist. He said that as far as the romantic part between the two consenting adults is concerned, that is a different scenario all together. He submitted a research study done by the journal of science and technology.

He said that NALSA has done two things. He quoted paragraph 60, saying that the yogyakarta principle would apply. He said it has also brought in the concept of third gender, giving them equivalent rights.

The counsel said that the courts neither create an offence nor increase or decrease the punishment for the same. He said that the court cannot provide a higher punishment, it can only make a suggestion to the legislature.

Moving over to teh international situation, the counsel submitted that European courts differ from what the American courts have to say.

At this Justice Nariman said: “If at all it strikes us that some law is violative of the fundamental rights, it is our duty to strike it down.”

To this the CJI said: “Just because you want to satisfy your sexual orientation doesn’t mean the rights of others will be affected.”

At this the counsel read out a paragraph from the petition, saying everyone has the right to form a family, irrespective of their orientation.

Justice Chandrachud said: “On the contrary, the mere denial of people living in gay relationships have led to an increase in the deterioration of human health, leading to sexually transmitted diseases.”

Citing the example of what South Africa did, he said the mere suppression of these relationships would lead to availability of improper medical facilities.

The senior counsel, while referring to Government of NCT vs Union of India, he emphasises upon the concept of constitutional morality. He said that “there will be denial of natural justice if we’re not heard. In Suresh kr. Kaushal case, we were heard extensively.”

Justice Chandrachud said: “HIV is transmitted in heterosexual couples as well. So should we criminalise sexual intercourse between them as well?” He said it was not unprotected intercourse, but is about exposure to contract HIV.”

Counsel Menaka Guruswamy, fighting for the cause, objected that the submissions by the intervener belonged to two different sources.

Justice Chandrachud said: “We find a lot of hate speeches over the internet. But the question is whether it should be taken on record for consideration or not.”

Respondents submitted that recognising live-in relationships have increased the number of rape cases in India. He also submitted that when two consenting adults indulge themselves in the act of intimacy which is unnatural in itself, it is meant to hurt which comes within the purview of section 322 of IPC which deals with voluntary grievous hurt.

While referring to the Keshavanand Bharti case, the respondent submits that the scope of fundamental rights cannot be over-burdened.  Directive Principles of State Policy (DPSP) and fundamental duties must be looked upon while striking down a law.

When the respondent submitted that the consenting unmarried men indulging into sexual activities affect the institution of marriage, Justice Chandrachud intervened and asked how can it affect the institution of marriage if two consensual adults indulge themselves in the act of intimacy?

—India Legal Bureau

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