Risking Prosecution, Five gay Indians ask Supreme Court to quash law that criminalise homosexuality



Their petition claims that Section 377  violates the basic Constitutional right to life and personal liberty


In December 2013, while reading a Supreme Court verdict upholding the constitutional validity of section 377 of the Indian panel Code Justice GS Singhvi reportedly remarked that he had “never met a gay person”.

That remark was one of the reasons why five homosexual Indians – all prominent names in the fields of art, culture and business – have filed a writ petition in the Supreme Court seeking the quashing of Section 377, a law that criminalises any form of “unnatural” sex.

Previous petitions against Section 377 have been filed by either non-profit organisations, medical professionals or relatives of gay people. But the petitioners in this latest case have chosen to speak up directly as aggrieved members of the Lesbian, Gay, Bisexual and Transgender community, who believe that Section 377 violates their fundamental right to life and liberty and renders them “criminals in their own country”.

The five petitioners have had illustrious careers: Navtej Singh Johar is a Sangeet Natak Akademi award-winning Bharatnatyam dancer, Sunil Mehra is a senior journalist, Ritu Dalmia is a chef and restaurateur, Aman Nath is the founder of the Neemrana chain of hotels and Ayesha Kapur is a businesswoman. Their petition also makes it a point to mention that Johar and Mehra have been in a committed relationship for almost 20 years and live together.

“We would be abdicating a moral responsibility if we didn’t file this petition at this point in time,” said Mehra.

The petition was originally filed in April and at a preliminary hearing on June 29, a two-judge bench of the Supreme Court will decide whether to admit the plea or not.

‘Sexuality an inherent characteristic’

In 2009, the Delhi High Court admitted a plea by non-profit Naz Foundation and deemed Section 377 as unconstitutional and violative of the rights of consenting adults from the LGBT community. This landmark judgement wasn’t to stand long – in 2013, while hearing appeals against the Delhi High Court verdict, the Supreme Court upheld Section 377 as constitutional and effectively recriminalised homosexuality. A curative petition against this judgement was admitted in the apex court this February and is yet to be heard by a five-judge bench.

In the midst of this, the latest writ petition by Mehra, Johar and the others is likely to give a boost to the legal battle against an obsolete law.

While pleading to the court to quash Section 377, the petition seeks a declaration that Article 21 of the Constitution – which guarantees the right to life and personal liberty – also encompasses the right to “sexuality, sexual autonomy and choice of sexual partner”. It makes a simple comparison to inter-caste and inter-community marriages that the Court has protected on numerous occasions in the past, while asserting that sexuality is an “intrinsic, inherent and immutable characteristic of any human being” that must be protected rather than criminalised or stigmatised.

“The Petitioners are not, therefore, seeking protection only as sexual minorities but seeking recognition of sexual characteristics that inhere in all human beings,” the petition says. “The petitioners cannot overcome a lurking fear that their consensual relationships, even within the privacy of their homes, may invite coercive state action at the hands of a busybody, rival, political party or any 3rd party who…is motivated only by malice/prejudice.”

‘A moral responsibility’

Speaking out directly and openly as homosexuals is a significant step in the fight for LGBT rights, as the petitioners risk being persecuted and prosecuted under Section 377 itself.

But for Mehra, the decision to speak up is rooted squarely in a sense of ethical responsibility at a time when minorities of all kinds are increasingly being marginalised in Indian society.

“We are seeing the rabid, deliberate, agenda-based marginalisation of all minorities, and given this socio-political environment it is our responsibility to act,” said Mehra. “We must remember that the Bharat Mata Ki Jai movement didn’t begin with [Mohammed] Akhlaq, it ended there – in the same vein that marginalisation of Jewish minorities [during World War II] ended with the gassing of millions at Auschwitz and Dachau.”

Mehra sees his petition as a follow-up to the pleas filed by organisations like Naz Foundation. Petitioning as five individuals, Mehra believes, adds a human dimension to the fight for the rights of sexual minorities. “The petition is not so much about sexuality but about constitutionality – about the right to live, to be, to love – which is a right, not a favour,” he said. “And it is granted by the Indian Constitution to every Indian citizen.”