The Delhi High Court’s judgment on Section 377 of IPC being violative of the fundamental rights garnered momentum of appreciation from various sects of society. However, several religious groups appealed against this judgments and finally the Supreme Court upheld the validity of Section 377 stating that the Parliament had the power to formulate and de-formulate laws. Recently, the 2013 judgment criminalizing homosexuality is being challenged through fresh petitions seeking to challenge the violation of the fundamental rights of the LGBT community all over India. These petitions have been filed by Mumbai-based Humsafar trust, NGO which fights for the LGBTQ rights and other individuals. Pleas filed by hotelier Keshav Suri and earlier by five other celebrities who are a part of the LGBT community are still pending to be heard and decided upon. Mr. Keshav Suri, in his plea, has contended that he constantly lives under the threat of a false prosecution, and is, therefore, unable to live a life of dignity whereby he can exercise his choice to have sexual relations with his partner whom he has been with for a decade now.
With the hearing of these petitions that would take placed before a bench of the Chief Justice and Justices D Y Chandrachud and Indu Malhotra on May 1 2018, the primary questions that are being addressed through these petitions are as follows:
- Whether section 377 that criminalizes ‘voluntary carnal intercourse against the order of nature’, does not violate the fundamental right to privacy?
- Whether section 377 that criminalizes intimate expression between consenting adults does not violate the fundamental right to privacy, dignity and autonomy under the Constitution of India?
- Whether section 377 that criminalizes persons on the basis of their sexual orientation and identity, does not violate fundamental right to equality and non-discrimination under Articles 14, 15, read with Articles 19 and 21 of the Constitution?
- Whether section 377, which neither defines nor explains what constitutes ‘carnal intercourse against the order of nature’ is not arbitrary and violative of Articles 14 and 21 of the Constitution?
- Whether section 377 that impairs autonomy and expression in one of the most personal decisions of an individual’s life, i.e. the choice of one’s partner and intimate association is not violative of Articles19 and 21 of the Constitution?
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