Navtej Singh Johar and four other petitioners have sought not the total repeal of IPC Section 377 but only a relaxation for consensual gay sex between two adults.
Four years after the Supreme Court upheld the validity of IPC Section 377 that criminalises "carnal intercourse against the order of nature", it has referred a plea seeking a revisit of the Suresh Kumar Kaushal versus Naz Foundation judgment to constitutional bench.
But the petitioners are not seeking total repeal of IPC Section 377, which reads: Unnatural offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
The petition gains significance in the view of the Supreme Court judgment in August, 2017 recognising the right to privacy as fundamental right under Article 21 of the Constitution.
When the Supreme Court had overturned the Delhi High Court's 2009 judgment decriminalising, the right to privacy was an ordinary right and not a fundamental right. The Supreme Court had then said that only legislature can decriminalise offences mentioned in Section 377.
THE QUESTIONS RAISED IN PLEA
Filed by Delhi resident Navtej Singh Johar and four others, the Writ Petition raises two questions of law stating that Section 377 infringes upon their fundamental right to life guaranteed by Article 21.
Whether Section 377 of the Indian Penal Code is unconstitutional and violative of Part III of the Constitution of India, and thus, ought to be struck down?
Alternatively, whether Section 377 of the Indian Penal Code ought to be read down to exclude its applicability to consensual sexual acts of adults in private, so as to safe-guard the fundamental rights of such consenting adults?
ARGUMENTS BY THE PETITIONERS
The petitioners have contended that the right to sexuality and choice of sexual partner is covered under the right to life, which now includes the right to privacy. They have argued that "the right to sexuality (is) the most basic and inherent of fundamental rights."
"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 the protection of Fundamental Rights," the petition reads.
They stated that "their lives (are) inexorably constricted and their rights infringed by Section 377 of the Indian Penal Code, 1860."
Terming Section 377 a relic of colonial rule and of 19th century Victorian morality, the petitioners have challenged Section 377 stating that "criminal laws and pre-constitutional statutes in particular, must be judged on the touchstone of constitutional and not public morality."
The petitioners have not sought a total repeal of Section 377 of the IPC but challenged its constitutional validity to the extent of contravention of the right to life under Article 21 to decriminalise consensual sex between two adults. They have not challenged that part of the law, which criminalises sex with animals or minors or children.
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