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Read the wonderful new 377 challenge by 5 out-and-proud celebrities that'll hit SC today

This petition suggests Indian public attitudes to 'different' sexualities are finally changing
This petition suggests Indian public attitudes to 'different' sexualities are finally changing

Five celebrity petitioners, who claim to have experienced the wrong end of Section 377 of the Indian Penal Code because of their sexual orientation, have sought the Supreme Court's intervention through a writ petition to declare it unconstitutional.

They claim that the issues which they raise in their petition are varied and diverse from those raised in the currently pending curative petition in the Naz Foundation-Kaushal case, which was referred to a five-Judge bench before the vacation.

Their 65-page petition begins with:

The Petitioners are lesbian, gay and bisexual [‘LGBT persons’] 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 the Constitution, are infringed by Section 377 of the Indian Penal Code, 1860.

They will be represented tomorrow by senior counsel Kapil Sibal and Arvind Datar.

The petitioners

The petitioners describe themselves as upstanding, public-spirited citizens who live and work in India and have the greatest love for India, and faith in the rule of law, but who "find their lives inexorably constricted and their rights infringed" by the law, by being "denied the right to sexuality, the most basic and inherent of fundamental rights".

They are highly accomplished citizens and their work has been duly recognized by the respondent as well as the national and international bodies, the petition says. They contribute to the economic, social and cultural development of India through their business, art and writing, the petition claims.

The petitioners include, Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, and Ayesha Kapur, and they have sought a declaration that section 377 of the IPC is unconstitutional.

Navtej Singh Johar is one of India’s leading dancers, a master of the classical art form of Bharatnatyam, and the recipient of the 2014 Sangeet Natak Akademi award for creative dance/choreography.

Sunil Mehra is a a renowned journalist, based in Jaipur. He is also an acclaimed art and culture critic. He claims to have experienced violence as a gay man, and being unable to approach the police because of fear of prosecution under Section 377 IPC Having cleared the Civil Services Preliminary Examination, he chose not to sit for the Mains Examination, as he was apprehensive about his career prospects in state employment because of criminalization of his sexual orientation.

Both Johra and Mehra claimed to be in a committed relationship for over 20 years, with the help and support of their families, friends and colleagues.

Ritu Dalmia is a chef, author, restaurateur and TV personality. She is renowned as one of the leading chefs in India and has built the much-acclaimed ‘Diva’ chain, consisting of seven restaurants, which currently employs over 250 people.

Aman Nath is a hotelier, writer and historian. He claims to have been in a committed relationship with the late Francis Wacziarg for about 23 years till the latter’s death in 2014.

Ayesha Kapur did her BA from Clark University, Massachusetts, USA, with a double major in sociology, and psychology where she graduated Magna cum Laude and received the Outstanding Psychology undergraduate award.

In 2008, she had no option but to quit a lucrative corporate career in Delhi due to the fear of her sexual orientation being discovered and the adverse consequences that would have followed. She did not reveal her sexual orientation to even her mother until she was already in her mid-thirties, and when her mother was losing her battle with cancer.

Kapur claims that even today she is unable to accompany or be accompanied by her committed partner at social and family occasions.

Challenge

All the five petitioners claim that despite their formidable achievements and contribution to India, they are denied the right to sexuality, the most basic and inherent fundamental rights. Section 377 criminalises 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, their petition says:

Section 377 of the IPC infringes the petitioners’ right to sexuality, and also has a cascading effect of barring the petitioners from accessing the unenumerated rights which Supreme Court has held flow from Article 21 of the Constitution of India.

The ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfold the full potential of the personality of any human being. …Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.

After enumerating the well-known contentions against Section 377, which are already before the Supreme Court in the curative petition case, the petition does raise new issues which were not raised earlier. In particular, the petition seeks a writ of mandamus, declaring the right to sexuality, right to sexual autonomy, and right to choose a sexual partner to be part of the right to life guaranteed under Article 21. Besides, the petition alleges violation of the petitioner's rights under Articles 14, 15, 16 and 19.

It is reasonable to expect that the bench comprising justices SA Bobde and Ashok Bhushan at court No 13, before whom the petition (WP [crl] 76 of 2016) is listed, is most likely to tag the petition with the curative petition which has already been referred to a five-Judge bench.

However, what Kapil Sibal and Arvind Datar will argue in favour of the petition tomorrow, will be watched with considerable interest and excitement.

Also relevant: Chetan Gupta argued two years ago that approaching the SC afresh on 377 is the only way.

Celebrity anti-section 377 petition (PDF)

Photo by Tablet eraser

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