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Case Description

A five-Judge bench will decide if the Delhi High Court was right in decriminalising homosexuality by striking down Section 377 IPC.

Background

Section 377 of the Indian Penal Code prohibits “unnatural offences” and defines it as “carnal intercourse against the order of nature”. However, the Act does not define what the “order of nature” is. The provision also does not differentiate cases on the basis of age of either the offender or the victim. Similarly, it does not take into account whether the act is consensual or not. This uncertainty has affected the judicial interpretation of the term.

Naz Foundation (India) Trust challenged the wide interpretation of the provision in 2009 before the Delhi High Court. The Foundation contended that Section 377 has not only been used to punish the rape of children and acts of bestiality, but has also been misused in cases of consensual sexual acts which are not peno-vaginal. The Foundation cited an instance in 2001 in Lucknow where HIV prevention workers who were distributing condoms to homosexual men were arrested on the allegation of conspiring to commit an offence of sex between two men.

The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between two consenting adults as this would amount to a violation of the right to privacy and personal liberty that every person enjoys under Article 21 of the Constitution. The Court said that classifying and targeting homosexuals as a class violates Article 14 of the Constitution. The Court also held that discrimination on the ground of sexual orientation is not permissible under Article 15.

The High Court judgement was appealed to the Supreme Court by organisations and individuals who wished to protect the moral, cultural and religious values of Indian society. They argued that the right to privacy does not include the right to commit any offence. They submitted that decriminalizing homosexuality would be detrimental to the institution of marriage and it would cause young people to become tempted towards homosexual activities.

The Supreme Court reversed the Delhi High Court verdict and held that the decision of decriminalising homosexuality can only be done by the Parliament and not the Court.

Seven Curative Petitions have been filed in the Supreme Court against this judgement.

The Supreme Court recognised that the issue is of considerable importance and public interest, and has ordered the constitution of a 5-judge bench to look at the matter.

DISCLOSURE: Jayna Kothari of the Centre for Law and Policy Research has filed a supporting curative petition on behalf of transgender rights activist Akkai Padmashali in this case.

Issues

Has there been a gross miscarriage of justice and patent error by the Supreme Court in the 2014 Judgement, forming grounds to allow the Curative Petitions?

Judges