With Supreme Court in February this year providing a glimmer of hope for the LGBT community by promising a re-look into de-criminalisation of homosexual acts on a strong curative plea by Naz Foundation, three high-profile celebrities working in the sphere have approached the Supreme Court seeking quashing of section 377 of the IPC. Their plea is likely to be heard tomorrow.
The celebrities chef Ritu Dalmia, hotelier Aman Nath and dancer N S Johar, have sought protection of their sexual rights on the ground that it is an integral part of the fundamental right to life.
The gay celebrities, in their plea, said their lives have been inexorably constricted and their rights infringed by the penal provision. 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.
On February 3, the Supreme Court had referred a batch of petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.
Admitting appeals filed by Naz Foundation against re-criminalising of homosexual acts by a two judge bench of the apex court in December 2013, a three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.
Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary.
The Delhi High Court had, on July 3, 2009, legalised homosexual acts between consenting adults by overturning the 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS. It had said: “As it stands, the section denies a gay person a right to full person hood…”
The High Court had said section 377 will henceforth apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. But a SC bench overturned the HC verdict in December 2013 saying the Delhi High court order decriminalising homosexuality is “legally unsustainable” and only Parliament is empowered to change a law.
LGBT and human rights activists sharply criticised the Judgment, saying it “would turn the clock back by centuries”.
The Judgment was being viewed in India and globally as a retrograde step. The bench, which ruled that making or changing a law was the sole prerogative of Parliament, questioned why the government had not acted even 15 years after a Law Commission report sought deletion of the section, for which there were repeated demands.
Read the petition here.