Referring to Arif Jafar ‘s petition, Senior Advocate Anand Grover who represented all petitioners told the bench: ‘This is the first time an arrested man is before the court with a plea to scrap section 377 IPC. He was in jail for 47 days and tortured”.
The Supreme Court today issued notice and sought the view of Centre on two new fresh petitions involving six persons belonging to the gay community including LGBT rights activists seeking quashing of section 377 IPC which criminalized homlosexual acts.
They have argued that section 377 cannot be allowed to criminalise sex between consenting heterosexual adults.
They were filed by Mumbai-based Humsafar trust, NGO which fights for the LGBTQ rights and individuals- Ashok Row Kavi, Vivek Raj Anand, Gautam Yadav, Yashwinder singh and Arif Jafar. It was after Jafar’s arrest in 2001 that the campaign for decriminalization of section 377 began with Naz Foundation moving the Delhi High Court to get section 377 scrapped.
Referring to Jafar ‘s petition, Senior Advocate Anand Grover who represented all petitioners told the bench: ‘This is the first time an arrested man is before the court with a plea to scrap section 377IPC. He was in jail for 47 days”.
A bench of Chief Justice Dipak Misra, Justices D Y Chandrachud and A M Khanwilkar said these petitions will be tagged along with pleas filed by hotelier Keshav Suri and earlier by five other celebrities which has been placed before a constitution bench.
QUESTIONS RAISED BY FRESH PETITIONS
- Whether section 377 that criminalizes ‘voluntary carnal intercourse against the order of nature’, does not violate the fundamental right to privacy?
- Whether section 377 that criminalizes intimate expression between consenting adults does not violate the fundamental right to privacy, dignity and autonomy under the Constitution of India?
- Whether section 377 that criminalizes persons on the basis of their sexual orientation and identity, does not violate fundamental right to equality and non-discrimination under Articles 14, 15, read with Articles 19 and 21 of the Constitution?
- Whether section 377, which neither defines nor explains what constitutes ‘carnal intercourse against the order of nature’ is not arbitrary and violative of Articles 14 and 21 of the Constitution?
- Whether section 377 that impairs autonomy and expression in one of the most personal decisions of an individual’s life, i.e.the choice of one’s partner and intimate association is not violative of Articles19 and 21 of the Constitution?
The Supreme Court had on April 23 issued notice to the Centre on a plea filed by Suri, top businessman and Executive Director of Lalit Hotels, seeking to quash Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality.
Suri who himself is part of the LGBTQ community said that he constantly lives under the threat of a false prosecution, and is, therefore, unable to live a life of dignity whereby he can exercise his choice to have sexual relations with his partner whom he has been with for a decade now.
While the curative plea filed by Naz Foundation was already pending, Businesswoman Ayesha Kapur, Bharatnatyam dancer and recipient of 2014 Sangeet Natak Akademi award Navtej Singh Johar, wellknown journalist Sunil Mehra, noted chef, author, restaurateur and TV personality Ritu Dalmia, and hotelier, writer and historian Aman Nath in last year january filed a joint petition which has been placed before a constitution bench for hearing. “Despite our achievements and contributions to India in various fields, we are being denied the right to sexuality, the most basic and inherent of fundamental rights,” they had told the SC.
On the other hand Suri’s petition claimed: “Owing to Section 377 of the IPC continuing on the statute book, various adult and consenting members of the LGBTQ (Lesbian, Gay, Bisexual and Transgender and Queer) community continue to face the threat of a false prosecution and some are actually facing it,”
The petitioner also stated that members of the LGBT community are ridiculed in various spheres of life, and equal work opportunities and pay are not given to them.Suri filed the writ petition under Article 32 of the Indian Constitution, seeking a direction to declare that the right to choice of sexual orientation is a fundamental right enshrined in part – III of the Constitution of India.
Earlier in 2009, the Delhi High Court had decriminalised Section 377, but the order was later set aside by a Supreme-Court bench.
Categorised as an unnatural offence, consensual sexual intercourse between persons of same sex is termed ‘against the order of nature’ under Section 377 of the IPC, and can be punishable by life imprisonment.