LGBT Community Moves SC Against Article 377, Says It Is Against Right To Life

In what could lend more heft to the fight for their rights, leading lights of the LGBT community have moved the Supreme Court seeking quashing of Section 377 of IPC to protect their sexual preferences, saying these are part and parcel of the right to life.

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The petition by dancer N S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur will come up for hearing before a bench of Justices S A Bobde and Ashok Bhushan on June 29, when the SC resumes business after a 45-day vacation. Leading lawyers Kapil Sibal and Arvind Datar will argue for the petitioners.

Their writ plea will give fresh impetus to the pending petitions-by Naz Foundation and gay rights sympathizers like film-maker Shyam Benegal.

After refusing twice to entertain pleas against Section 377, which criminalizes homosexuality, the SC had on February 2 referred the issue to a 5-judge bench, saying "important constitutional issues" have been raised in the curative petitions.

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The present petition changes the contours of a decade-and-a-half old legal fight on two counts. One, well-known LGBT personalities who have till now lived in fear of social persecution have overcome the fear of public humiliation to assert their sexual preference. Second, this is the first time people who are directly aggrieved by Section 377 have challenged its constitutional validity.

Their petition's first paragraph is a bold declaration-"The petitioners are lesbian, gay and bisexual (LGBT) citizens of India whose rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377."

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Naz Foundation had filed a petition in December 2001 in the Delhi high court which, on July 2, 2009, decriminalized Section 377 by ruling that no adult would be prosecuted by law for indulging in consensual sex in private with another adult irrespective of their gender. One Suresh Kumar Koushal challenged the HC verdict in the Supreme Court which, on December 11, 2013, upheld the constitutional validity of Section 377 and set aside the HC's concession to the LGBT community. On January 28, 2014, the SC dismissed petitions seeking a review of its decision. Naz Foundation's curative petition has been admitted and referred to a 5-judge bench by the SC.

The petitioners said their lives have been "inexorably constricted and their rights infringed" by Section 377.

"Despite their achievements and contributions to India in various fields, they are being denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 renders them criminals in their own country," the plea said, adding,

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"Section 377 criminalizes the very existence of LGBT people by criminalizing their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender. Sexuality lies at the core of a human being's persona. Sexual expression, in whatever form, between consenting adults in the privacy of a home ought to receive protection of fundamental rights."

Their 716-page petition, including annexures, was painstakingly drafted by a team of lawyers, including Saurabha Kripal, Arundhati Katju, Himanshu Suman and Menaka Guruswamy.

The petitioners said Section 377 impedes the LGBT community members' right to be open with their friends, family, colleagues and employees.

"Even the fields of medicine and psychology have accepted that homosexuality is not an abnormality, but that human sexuality has myriad forms and diverse expressions," the petitioners said.

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"The fear that criminalization and coercive state action will follow if a person expresses a core part of their personality can have an unmeasurable harmful effect on one's economic, social and political life. The petitioners are highly accomplished professionals who have been felicitated for their professional achievements, but have suffered because of the deleterious effect of this draconian law on their personal and professional lives," the petition added.

Times View

We have repeatedly argued that Section 377 has no place in the statutes of a modern, liberal society. The state has no business dictating the sexual orientation of consenting adults. The Delhi high court has in the past shown that the courts can read down the section to decriminalise gay sex.

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But the ideal solution is not a mere reading down of the section. The legislature should recognise that the law needs to go and should repeal it. The government should initiate such a step by moving a bill to remove gay sex from the purview of Section 377 and all parties and MPs should pass it.