Section 377 Arguments Summary Day 4: July 17, 2018.

At 11.30 A.M. today, Mr. Manoj George, representing Apostolic Alliance of Churches and Utkal Christian Association, began his submissions. 

Mr. George began his submissions by urging the Court to apply literal interpretation rule to Section 377 -  Court cannot add or delete words if it is not expressly provided for in the statute. He further argued that Section 377 penalises carnal intercourse  between man and man, woman and woman, man and animal or between woman and animal.

Next,  Mr. George read out Article 15 to argue that it does not include “sexual orientation”. Justice Nariman responded that the Yogyakarta principles include sexual orientation within the ambit of sex. Illustratively, Justice Nariman said that NALSA read transgender within the ambit of sex.

Justice Nariman specifically questioned what would constitute order of nature. When Mr. George argued that order of nature has not been defined, Justice Nariman responded that any sexual act which resulted in reproduction would constitute order of nature.

Mr. George questioned the nature of Yogyakarta principles. He requested the court to consider the signatories of the statement. He argued that the principles have been drafted by a group of NGOs comprising distinguished human rights experts and they are merely guiding principles. Justice Nariman observed that respect for international law flows from the directive principles of the Indian constitution.

Justice Misra pointed out that the Yogyakarta principles may not be binding but if it fits India’s constitutional framework, the court will give it due consideration. Mr. George responded that the court is trying to import principles of sexual orientation without looking into the context. He also argued that sexual orientation cannot be defined and has not been defined under any statute. It is essentially a vague concept.

Justice Misra observed that victorian morality is now outdated. He further observed that what is natural has many meanings. 

Mr. George then referred to a finding by the Journal of Technology and Society that homosexuality is influenced by various factors including genes and environment. Furthermore, sexual orientation is fluid. He argued that it is innate is not supported by scientific evidence.

Justice Nariman asked him to explain sex as understood in NALSA. Mr. George submitted that Justice Sikri recognized that to transform rights into reality, it was necessary to  assign them a proper sex. Mr. George argued that Justice K.S. Radhakrishnan did not assign them a third gender.

At this point, Justice Nariman said that it was necessary to recognize the instances of persecution of the LGBT community. He cited the case of Alan Turing who committed suicide when there was an order for the chemical castration of all homosexuals. Mr. George replied that in India, there are no such instances of persecution.

Mr. George said that it is not the duty of the court to introduce offences or lay down penalties, which is the job of the legislature. Referring to accepted principles of statutory interpretation, he said that the court cannot read words unless it is necessary to do so. The courts can decide what law is but not what the law should be.

Mr. George argued that unnatural offence is a ground for divorce under Indian laws. Justice Nariman responded Section 377 could be read as holding bestiality as an unnatural offense.

Mr. George argued that Suresh Koushal held that it is for the Supreme Court to amend the Indian Penal Code and remove Section 377 from the statute. Justice Nariman held that if any provision of the law violates Section 377 of the IPC, it is the duty of the court to strike it down. Justice Misra observed that one’s sexual orientation cannot offend the dignity of others.

Mr. George submited that Yogyakarta principles talk not just about family but also many other rights regardless of sexual orientation. Justice Nariman observed that the Yogyakarta principles state that a family may exist regardless of marriage. Mr. George said that the court should not be relying on the Yogyakarta principles as though it’s the Magna Carta.

At this the bench raised a public health concern. Justice Chandrachud observed that public acceptance ensures that public health concerns remain a priority. He specifically referred to the policy in South Africa with respect to AIDS. Justice Nariman drew an analogy with regards to prostitution. If it is licensed, it would ensure the sex workers’ right to health.

Mr. George’s final submission was that the only reading down possible of Section 377 was to make the offenses under Section 377 bailable and non-cognizable. At this point, the bench rose for lunch.

(This report has been prepared by Mr. Samya Chatterjee.)