New Delhi: The Supreme Court on Monday sought the centre’s views on a challenge to a Victorian era law criminalizing sexual intercourse by consenting adults of the same sex.
The matter was brought before a bench headed by Chief Justice Dipak Misra, who issued notice to the centre and sought its reply within a week.
The court was hearing a plea by Keshav Suri, executive director at Lalit Suri Hospitality Group, who sought a declaration that the right to choice of sexual orientation was embedded in Article 21 (right to life and personal liberty) and any discrimination against a person on the basis of exercise of this choice was in violation of the constitutionally guaranteed fundamental rights.
He also sought scrapping of Section 377 of the Indian Penal Code, 1860, that criminalizes consensual intercourse between same-sex adults.
In his petition, Suri argued he was facing discrimination on account of his sexual orientation and for being passionate about the cause of inclusion of members of the LGBTQ community in economic and social spheres.
A fresh challenge to the apex court’s 2013 ruling criminalizing consensual sex between same sex adults is pending before the court and is likely to be heard by a Constitution bench.
It was brought to the apex court by a group of five prominent representatives of the LGBT community—Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.
On 24 August, 2017, a nine-judge bench of the apex court held privacy to be a fundamental right, sparking hopes this could lead to the decriminalization of homosexuality.
In December 2013, a division bench of the Supreme Court overturned a 2009 high court verdict that had set aside the 1860 law and decriminalized consensual sex among adult homosexual men.
The apex court is also considering a curative petition filed by Naz Foundation Trust, the non-governmental organization that had originally filed a lawsuit in the Delhi high court in 2001. In 2009, the high court had ruled that Section 377 of the IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.
The curative petition filed before the top court argues that the court has incorrectly held that a “minuscule fraction of population cannot claim fundamental rights”. The petition also alleged an issue bias by the court against the LGBT community through its references, such as “the so-called rights of LGBT persons” in its 2013 judgement.