The Supreme Court today issued a notice to the Centre on two separate pleas challenging section 377 of the Indian Penal Code which criminalises unnatural sex, including the carnal intercourse between consenting adults of the same gender.
A bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud sought responses from the ministries of Law and Justice, Home Affairs and Health on two pleas filed by LGBT rights activists Arif Jafar, Ashok Row Kavi and others including Mumbai-based NGO Humsafar Trust which fights for LGBT rights.
Senior advocate Anand Grover, appearing for Jafar, said "this is the first time an arrested man is before the court with a plea to scrap section 377 of the IPC. He was in jail for 47 days."
Jafar claimed in his plea that he and his four colleagues, who were involved in an outreach and distribution of condoms among men having sex with men, were humiliated and beaten up in public before being arrested by the police under section 109 (punishment of abetment), section 120B (criminal conspiracy), section 292 (sale of obscene books) and section 377 (unnatural offence) of the IPC.
Jafar spent 47 days in jail before he was granted bail by the Allahabad High Court.
"Section 377 IPC violates the fundamental right to privacy and does not meet the three-fold requirements laid down by this Court ..., which may justify restraints on privacy.
"In particular, section 377 IPC fails to meet the second requirement, which is that of a valid law that serves a 'legitimate aim', or, in other words, a law that is not manifestly arbitrary. The only avowed objective of section 377 IPC is to prohibit sexual activity that is 'against the order of nature' - which, is ex facie arbitrary," Jafar said in his plea.
The apex court had on April 23 sought the reply of the Centre on a hotelier's plea for striking down section 377. It had sought the 'right to choice of sexual orientation' to be declared as part of the fundamental Right to life and personal liberty under Article 21 of the Constitution. LGBTQ are the initials for lesbian, gay, bisexual, transgender and queer.
The bench had ordered tagging of hotelier Keshav Suri's petition with other similar pleas which have already been referred by the apex court to a constitution bench on January 8.
Section 377 of the IPC refers to 'unnatural offences' and says 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 pay a fine.
While agreeing to reconsider its 2013 verdict criminalising gay sex, the apex court had on January 8 said the section of people or individuals who exercise their choice should never "remain in a state of fear".
It had also said the determination of the order of nature is not a constant phenomenon as social morality changes from age to age.
The apex court is already seized of similar pleas filed by celebrities like dancer N S Johar, chef Ritu Dalmia and another hotelier Aman Nath challenging the validity of section 377 criminalising the consensual gay sex.
The Delhi High Court, on July 2, 2009, had legalised homosexual acts among consenting adults holding that the 149-year-old law making it a criminal offence is violative of the fundamental rights and making it not punishable.
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