For the first time, prominent members of the LGBT community in India have moved the Supreme Court against Section 377 of the Indian Penal Code, which criminalizes gay sex for being “against the order of nature.”
Dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur, have filed a petition to quash S.377, arguing that this provision hurts their Right To Life, guaranteed by the Indian Constitution, The Times of India reported today.
Significantly, this is first time that people who are actually hurt by S. 377 have challenged its constitutional validity. The battle for gay rights, so far, has been led by the Naz Foundation, and other groups, which advocate equal rights for sexual minorities.
“The petitioners are lesbian, gay and bisexual (LGBT) citizens of India whose rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377,” the petition reads.
Overturning an earlier Delhi High Court ruling to decriminalize S.377, a 2013 Supreme Court decision upheld a ban on gay sex, a move which was widely condemned as regressive. The Supreme Court ruled that only the Indian Parliament could overturn the colonial-era statute. That outlook appeared to be rather bleak especially after the Hindu nationalist Bharatiya Janata Party formed the majority in the Lok Sabha in the summer of 2014, although some leaders of the BJP and its big brother, the Rashtriya Swayamsevak Sangh, appear to have softened their previously inflexible position against homosexuality.
We have repeatedly argued that Section 377 has no place in the statutes of a modern, liberal society. The state has no business dictating the sexual orientation of consenting adults. The Delhi high court has in the past shown that the courts can read down the section to decriminalise gay sex. But the ideal solution is not a mere reading down of the section. The legislature should recognise that the law needs to go and should repeal it. The government should initiate such a step by moving a bill to remove gay sex from the purview of Section 377 and all parties and MPs should pass it.