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Criminalising homosexuality unconstitutional: Gay right activist to Supreme Court

Tuesday, 24 December 2013 - 5:37pm IST | Place: New Delhi | Agency: PTI
The NGO submitted there are a number of "grave errors of law" and "wrong application of law" in the judgement which need to be corrected.

Gay right activists on Tuesday moved the Supreme Court pleading it to review its verdict for declaring gay sex an offence punishable up to life imprisonment saying it amounts to violation of fundamental rights of the LGBT community.

The petition, filed by Naz Foundation, an NGO working for the welfare of Lesbian, Gay, Bisexual and Transgender (LGBT) community and on whose plea the Delhi High Court had decriminalise gay sex, pleaded for immediate stay of the judgement and submitted that review plea be heard in an open court proceedings.

The NGO submitted there are a number of "grave errors of law" and "wrong application of law" in the judgement which need to be corrected.

"This court has failed to consider the submission that Section 377 violates the right to health of men who have sex with men, since criminalisation of same sex activity impedes access to health services, including HIV prevention efforts. This contention was supported by the Ministry of Health and Family Welfare in this court," the petition said.

Seeking stay on the operation of the judgement, the NGO said thousands of LGBT persons became open about their sexual identity during the last four years after the High Court decriminalised gay sex and they are now facing the threat of being prosecuted.

"The impugned order this Court has caused immense prejudice to all adult persons engaging in consensual sex, in particular from the LGBT community who suddenly have been put at risk of prosecution under criminal law and require immediate relief," it said.

Amidst huge outrage against the judgement, the Centre has already filed a review petition in the apex court.

The Centre sought review to "avoid grave miscarriage of justice to thousands of LGBT" persons who have been aggrieved by the apex court judgement contending it is "unsustainable" as it "suffers from errors".

While setting aside the July 2, 2009 judgement of the Delhi High Court, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the High Court is legally unsustainable.

The NGO contended that the judgement is contrary to the well-settled legal principles of the Constitution and proscribing certain sexual acts between consenting adults in private, demeans and impairs the dignity of all individuals under Article 21, irrespective of their sexual orientation.

"This Court has failed to consider that Section 377, which prohibits all penile-non vaginal sexual acts between consenting adults, violates right to privacy of all persons under Article 21, irrespective of sexual orientation," the petition said.

"The Court has completely ignored the comparative jurisprudence from foreign jurisdictions on anti-sodomy laws and how they have been struck down for being violative of rights to privacy, dignity and autonomy of LGBT persons," it said adding "the justification to prohibit non-procreative sex might have been valid in 1861 but it is no longer valid in the present times and contexts and ought to be struck down".

The petitioner also raised the issue of biasness on part of the bench which delivered the verdict.

"Because the observations of this court in referring to the LGBT community in terms of 'the so-called rights of LGBT persons' or viewing them as 'minuscule fraction of the country's population to whom fundamental rights do not extend, actually reflect an 'issue bias' in the judgement of this court which vitiates the judgement," it said.

"This court has erred in failing to consider the High Court's holding on constitutional morality, as opposed to public morality, wherein the High Court held that the Constitution of India recognises, protects and celebrates diversity and to stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality," the petition said.


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