We don't decide Constitutional issues by referendum - CJI Dipak Misra on Sec 377

Jul 12 2018 03:54 PM
We don't decide Constitutional issues by referendum - CJI Dipak Misra on Sec 377

New Delhi: A five-judge Constitution bench of the Supreme Court on today heard petitions against Section 377 of the Indian Penal Code that makes homosexuality or unnatural relations a crim

 Here are Major highlights of Courtroom hearing on section 377-

Advocate Manoj George made submissions for intervenors in support of Section 377. George is appearing for interveners and sought reasonable time for making submissions. CJI Dipak Misra refused his urge.

Lawyer who is supporting Section 377 submitted that homosexuality found only in lower level animals. The advocate said "carnal intercourse" different from "sexual intercourse".

Carnal intercourse against the order of nature

CJI said in response that no one has argued about sex with animals and rightly so.

SC said it is not concerned with bestiality, incest or related issues but only with the constitutional validity of Section 377 of IPC as far as it concerns sexual orientation of LGBT community members.

CJI said, "We don't go by majoritarian morality but by constitutional morality."

CJI said, "We are only to judge Section 377 of IPC on the touchstone of Article14, Article19, and Article 21 of the Constitution. For that, we don't have to go to Israel."

We don't decide Constitutional issues by referendum - CJI Dipak Misra

Worth mention here On Monday, a bench of Chief Justice Dipak Misra, Justice DY Chandrachud, and Justice AM Khanwilkar had rejected the Centre’s plea for deferred today’s hearing. The Centre wanted some more time to file its reply to the pleas on gay sex.

Here are the six petitioners which challenge the legality of Section 377 in Top Court today

1) Navtej Singh Johar v. Union of India (UOI), WP (Crl) No. 76/2016


2) AKKAI PADMASHALI v. UOI, WP(C) No.572/2016


3) Keshav Suri v. UOI, WP (Crl) No.88 of 2018


4) Arif Jafar v. UOI, WP(Crl) No.100/2/18

5) Ashok Row Kavi & others v. UOI, WP(Crl) No.101/2018

6) ANWESH POKKULURI  v. UOI, WP (Crl) No. 121/2018

The court, however, noted that since the case has been awaiting the hearing for some time, the Centre should have filed its response on PILs. Besides Chief Justice Dipak Misra, Justice Chandrachud, and Justice Khanwilkar, Justice Rohinton Fali Nariman and Justice Indu Malhotra comprised the constitution bench established to hear the issue.

In December 2013, the Top court had criminalized sexual relationship between consenting adults of the same sex. On the other hand the Delhi High Court’s July 2, 2009 ruling had decriminalized it. The HC had termed Section 377 of IPC "illegal".

In the wake of the SC verdict, review petitions were filed. When they were dismissed, curative petitions were filed. The SC had referred several PILs filed by NGO Naz Foundation and eminent citizens challenging the 2013 verdict to a constitution bench.

On January 08 2018, the SC had referred the pleas to a five-judge constitution bench. 

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