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| @ | May 7,2018

On 27 April, 2018, fresh writ petitions challenging the constitutional validity of Section 377 Indian Penal Code were mentioned before the Supreme Court bench comprising of Chief Justice of India Dipak Misra and Justices Indu Malhotra and DY Chandrachud by senior advocate Anand Grover.

Six more petitions have been filed by Mumbai based NGO Humsafar Trust, Ashok Row Kavi, Vivek Raj Anand, Gautam Yadav, Yashwinder Singh and Arif Jafar. These are expected to be tagged along with the petition filed by hotelier Keshav Suri and five other public personalities which has been placed before a constitution bench.

One of the petitions mentioned on Friday (27 April) Arif Jafar v. Union of India & Ors. was filed by a petitioner who is a homosexual man who suffered arrest and detention and prosecution on account of his sexual orientation and has experienced first-hand the violation of his fundamental rights and freedoms guaranteed under Part III of the Constitution of India on account of section 377 of the Indian Penal Code.

The following questions of law of public interest were raised in this petition:

  1. Whether section 377 that criminalizes ‘voluntary carnal intercourse against the order of nature’, does not violate the fundamental right to privacy?
  2. 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?
  3. 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?
  4. 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?
  5. 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 Articles 19 and 21 of the Constitution?

(Read the full text of the petition here.)

In the petition titled Ashok Row Kavi & Ors. v. Union of India & Ors. petitioners are homosexual men working on access to HIV-related healthcare and rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) persons with the NGO Humsafar Trust.

This petition states that Section 377 of IPC, in criminalizing consensual, sexual acts between adults in private violates right to dignity, personal autonomy, right to privacy, under Article 21 of the Constitution of India and also impedes HIV-prevention efforts and is a violation of Right to Health under Article 21. It also states that Section 377, in criminalizing consensual, sexual acts between adults undermines the value of Fraternity and violates the test of substantive due process of law. It was also stated that this provision is patently discriminatory against non-hetero-sexual persons, including, homosexual men transgender persons and intersex persons and is violative of Article 14 of the Constitution and had a chilling effect on other fundamental rights, particularly under Article 19(1) (a) of the Constitution.

(Read the full text of the petition here.)

On Monday (23 April) the Supreme Court bench comprising of Chief Justice Misra, Justices DY Chandrachud and AM Khanwilkar issued notice to the government, asking them to respond to the plea filed in the Keshav Suri case. The decision to revisit the December 2013 judgement of the Supreme Court in the case of Suresh Kumar Koushal v NAZ Foundation which upturned the 2009 Delhi High Court judgement that had decriminalised Section 377 of the Indian Penal Code which criminalised consensual acts of sexual intercourse between persons terming it as ‘unnatural’ and ‘against the order of nature’.

 

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