CJI to hear activists’ fresh plea on gay sex

A fresh petition filed in the Supreme Court by lesbian, gay, bisexual and transgender (LGBT) activists challenges the validity of Section 377 IPC, to the extent that it re-criminalises homosexuality with two consenting adults on the ground that it violated the right to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality.

This PIL came up for admission on Wednesday before Justices S.A. Bobde and Ashok Bhushan. Sen-ior counsel Arvind P. Datar, appearing for the petitioners, submitted that this was the first writ petition, filed by members of LGBT, as earlier petitions were filed by NGOs and others. He said that the matter had already been referred to the constitution bench.

At this juncture, Justice Bobde told the counsel that either the petitioners could await the verdict of the constitution bench or this matter may be referred to the CJI for passing appropriate orders to place it before the bench. The counsel agreed to refer the issue to the CJI, and accordingly, the bench directed the Registry to refer the writ petition to the CJI.

In February this year, acting on a batch of eight curative petitions seeking review of the verdict upholding this provision, a three-judge bench, comprising Chief Justice T.S. Thakur and Justices Anil R. Dave and J.S. Khehar, posted the matter for hearing before a five-judge constitution bench. This gave fresh hopes and a major relief to the LGBT community seeking review of the earlier verdict.

In the present PIL, the petitioners Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath and Ayesha Kapur, who are prominent and well-accomplished citizens and members of the LGBT community, contended that Section 377 IPC violated the right to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality.

The petitioners submitted that the right under Article 21 of the Constitution (right to life and liberty) encompassed the right to sexuality, sexual autonomy and choice of sexual partner. The apex court had protected persons who had chosen their conjugal partner in defiance of the case and religious norms sought to be enforced by a section of society. The court had asserted a right to bodily integrity and autonomy which were intrinsic to a person’s right to dignity and self-determination.

It was argued that sexuality was an intrinsic, inherent and immutable characteristic of any human being; that its development without social stigma and criminalisation, particularly within the privacy of a home, was an essential component of a life with dignity. They sought a declaration that Section 377 IPC was illegal and to be quashed as unconstitutional.