The Supreme Court on Tuesday issued a notice to the Centre on two fresh petitions challenging the criminalisation of gay sex between consenting adults, Live Law reported.
Section 377, which dates back to the British colonial period, criminalises anal and oral sex, referring to it as “unnatural sex”, and states that it is “against the order of nature with any man, woman or animal”. It also includes a maximum punishment of life imprisonment. In 2009, the Delhi High Court had decriminalised Section 377. However, in 2013 the Supreme Court set aside the order. In January, the Supreme Court said it would revisit the constitutional validity of the section and referred it to a Constitution bench.
Arif Jafar, Vivek Raj Anand, Gautam Yadav, Ashok Kavi, Yashwinder Singh, and Mumbai-based Humsafar trust filed the fresh petitions. The Lucknow Police had arrested Jafar under Section 377 in 2001 for allegedly promoting homosexuality. He was released on bail after 47 days in custody.
“This is the first time an arrested man is before the court with a plea to scrap Section 377 of the Indian Penal Code,” senior advocate Anand Grover, appearing for the petitioners, said. “He was in jail for 47 days.”
The petitioners have questioned whether Section 377 violates the fundamental right to privacy or equality of an individual under the Constitution. They have also asked whether the section, which does not define what constitutes “carnal intercourse against the order of nature”, violates Articles 14 and 21 of the Constitution, which provide the rights to equality and personal liberty.
In April, hotelier Keshav Suri challenged Section 377 claiming that members of the LGBT community were ridiculed and denied equal work opportunities and pay. He asked that the court declare the right to choice of sexual orientation a fundamental right. The court had then issued a notice to the Centre.
On Tuesday, the court said the fresh petitions will be attached with that of Suri and various others already before a Constitution bench.
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