The Naz Foundation on Tuesday moved the Supreme Court seeking review of its judgment holding homosexuality or unnatural sex between two consenting adults (Section 377 of the Indian Penal Code) illegal and offence.
The NGO, working for the Lesbian, Gay, Bisexual and Transgender (LGBT) community, said the December 11 judgment was against the grain of the court’s own jurisprudence on advancement of fundamental rights and freedoms of all persons, especially those who faced marginalisation in society. “It completely dismisses jurisprudence from all over the world and international human rights law on sexual orientation and gender identity. Reliance on the principles of judicial restraint and Parliament’s prerogative to change laws is misplaced, when the law has been challenged for violation of fundamental rights of individuals.”
The petitioner said the court failed to consider that Section 377 violated the right to health of men who have sex with men. For, criminalisation of same sex activity impeded access to health services, including HIV prevention efforts.
Also, the judgment was “contrary” to the well-settled legal principles of the Constitution, and proscribing certain sexual acts between consenting adults in private demeaned and impaired the dignity of all individuals under Article 21, irrespective of their sexual orientation.
Seeking an interim stay on the judgment, the petition said it caused immense prejudice to all adults who engaged in consensual sex, particularly those from the LGBT community, who were put at risk of prosecution under criminal law. In the last four years, many persons had become open about their sexual identity and disclosed their intimate relationships on the basis of the Delhi High Court judgment, which decriminalised homosexuality.