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 prefe rences, saying these are part and parcel of the right to life.The petition by dancer N S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Ka pur 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 45day vacation. Leading lawyers Kapil Sibal and Arvind Datar will argue for the petitioners.
Their writ plea will give fresh impetus to the pending petitions filed by Naz Foundation and gay rights sympathizers like film-maker Shyam Benegal. After refusing to entertain petitions against Sec tion 377, which crimina lizes homosexuality , twice, the SC had on February 2 referred the issue to a five-judge bench, saying “important constitutional issues“ have been raised in the curative petitions.
The present petition changes the contours of a decade-and-a-half-old legal fight on two counts. One, wellknown 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. “Despite our achievements and contributions to India in various fi elds, we are being denied the right to sexuality, the most basic and inherent of fundamen tal rights. Section 377 renders them criminals in their own country .“ the plea said, adding, “Section 377 criminalizes the very existence of LGBT people by criminalizing their sexuali ty, 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 drafted by a team of lawyers, including Saurabha Kripal, Arundhati Katju, Himanshu Suman and Menaka Guruswamy .
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. 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.