SC admits plea to quash Section 377

Seventeen years after he was imprisoned for his sexual orientation and efforts to help the LGBT community, the Supreme Court on Tuesday admitted the petition of a man to quash the “tyranny” of Section 377 IPC, which criminalises homosexuality.

Arif Jafar, who ran an outreach programme at his Bharosa Trust in Lucknow, was beaten up in public by the police and jailed for 47 days in 2001. He termed Section 377 a threat to human dignity and freedom of choice.

His office premises, where he conducted an outreach programme for homosexuals and distributed condoms, was raided. Literature on gender, sexuality and safe sex were seized by the police as evidence of “running a gay racket.”

He was denied bail by the local sessions court. The charges mounted against Mr. Jafar, represented by advocate Sunil Fernandes, included conspiracy to promote homosexuality, “polluting the entire society” and abetting young persons to commit the offence of sodomy.

“Chilling effect”

Mr. Jafar, who introduced himself to the Supreme Court as a “gay man and a citizen of India,” said the brutal shutting down of his peer support programme evoked a “chilling effect” on similar interventions to prevent and control HIV among men having sex with men. Sexual orientation and identity cannot be the basis of denying a person their inherent dignity.

Mr. Jafar quoted the court’s decision in the recent Hadiya case judgment which upheld the fundamental right to determine the “choice of one’s intimate partner, within or outside marriage.” Section 377, the petition said, specifically and directly violates this right.

A Bench led by Chief Justice of India issued notice to the government and tagged the petition with a series of petitions to be heard by a Constitution Bench.

The Supreme Court had similarly on January 8 referred to a larger Bench a writ petition filed by five gay and lesbian members of the community to strike down Section 377.