"On the mere concession of the Centre, we will not say that the section is ultra-vires".
In almost nine-hour-long arguments spread over three days, the different petitioners and interveners represented by the senior counsel Ashok Desai, Krishnan Venugopal and others assailed the validity of Section 377 on the grounds of its being violative of fundamental rights guaranteeing equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, freedom of speech and expression and protection of life and personal liberty.
Referring to Justice Chandrachud's observation on Tuesday that right to choose a partner would also include right to choose partner from the same sex, the ASG said, "This may encourage other forms of sexual perversions such as incest, and relationships within the prohibited degrees and between "sapindas", which are restricted under the Hindu Marriage Act". Gay rights activist Yadavendra Singh from Pahal Foundation said: "We have been fighting this battle since 2001 and we are more than eager for the judgement".
On Wednesday, the Centre had left the matter to the "wisdom" of the court, fearful of taking any stand since backing gay rights would annoy its traditional support base while backing the ban could alienate the young.
In 2009 - just days after gay activists staged Gay Pride parades in several cities for the first time - the Delhi High Court of India declared sex between two consenting members of the same sex legal.
At the outset, senior advocate Shyam Divan, appearing for a group "Voice against 377", said the court should declare the "right to intimacy" as fundamental right saying the LGBTQ community faced "unjust and unequal treatment" due to the existence of the section 377.
The affidavit clarified that if this Court is pleased to decide to examine any other question other than the constitutional validity of Section 377, or to construe any other right in favour of or in respect of LGBT, the Union of India would like to file its detailed affidavit in reply.
CJI Dipak Misra remarked,"If there are service conditions prohibiting LGBT and transgender people in services it will go once we hold Section 377 unconstitutional..." Civil rights and other issues would be addressed when they come before the court. He points they were punished for outreach work to empower the sexual minorities with the knowledge about their rights.
While stating on the court's previous decision, Yashwinder Singh, Project Manager at Humsafar Trust, one of the oldest LGBTQ advocacy forums in India said that though Section 377 does not directly discriminate against the LGBTQ community it creates an atmosphere of shame and lack of dignity for the community. "Once decriminalisation is there they will feel empowered".
The bench said a declaration that the penal provision was invalid would help "awakening in the society and help LGBTQ community to live life to the fullest". This comes after a judgment by the same court five years ago that upheld the criminalization of homosexual acts.
The hearings so far has made "a class of people" the focal point, where the question is actually about the violation of constitutionally guaranteed rights and freedom for "a class of people", and the impact that the section has on the everyday lives of this class of people.
Punishing consensual acts between adults is grossly disproportionate, and its continuation is an instance of non-application of legislation of mind, she said.
The court also made it clear that it would be deciding on the validity of the provision on the basis of constitutional morality and not the majoritarian morality.