SC to Reconsider Law Criminalizing Homosexuality in India


January 09, 2018

The Supreme Court on Monday agreed to reconsider its judgment passed in 2013 in the case of Suresh Kumar Kaushal v. Naz Foundation, wherein the Apex Court had upheld the constitutional validity of Section 377 of Indian Penal Code.  Section 377 of IPC criminalizes homosexuality in India.

Here it would be relevant to mention that a Curative petition challenging the Supreme Court’s judgment in Naz Foundation case is pending before the Supreme Court. However, the Petitioners in the case have submitted that the issues for challenge to Section 377 of IPC raised by the Petitioners in the present petition are varied and diverse from issues raised in the Curative Petition.

In the case, the Petitioners who are LGBT persons have alleged that their rights to sexuality, sexual anatomy, choice of sexual partner, life, privacy, dignity and equality alongwith other Fundamental rights guaranteed under Part III of the Constitution of India have been infringed by virtue of Section 377 of IPC. The petitioners have further averred that they find their lives inexorably constricted and their rights infringed by Section 377 of IPC despite their formidable achievements and contribution to India, they are denied the right to sexuality, the most basic and inherent of fundamental rights.

While terming Section 377 of IPC as a draconian law, the petitioners have contended that the provision criminalizes the very existence of LGBT persons by criminalizing their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender.

The Supreme Court Bench in the case has referred the matter for consideration by a larger Bench of the Court.