NEW DELHI: The Supreme Court on Thursday agreed to hear a petition filed by a batch of 20 people, current and former students of Indian Institutes of Technology, for scrapping Section 377 of India Penal Code which makes carnal intercourse a crime punishable upto ten years of imprisonment.
A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud issued notice to Centre and tagged their petition with bunch of other petitions which were filed by social activists and NGOs challenging apex court’s verdict of reviving Section 377 which was read down by Delhi high court which had decriminalised gay sex among consenting adults in private.
SC had overturned a Delhi high court verdict decriminalising gay sex among consenting adult in private. The apex court in 2013 revived the penal provision of Section 377 which was declared unconstitutional by high court in 2009. The court had even refused to review its order and dismissed the plea of gay rights activists. It, however, agreed to hear their curative petition which is the last judicial resort for a litigant to get his grievances heard by court. Although most of the curative petitions get dismissed by the court in an in-chamber proceeding, the court agreed to give an open court hearing on the issue and the case was referred to a constitution bench.
After the apex court agreed to re-examine its verdict, many gay right activists and people belonging to LGBT community approached the court seeking quashing of Section 377. The fresh petition, filed on behalf of LGBT alumni association of IITs, alleged that criminalisation of sexual orientation and their very identity resulted in a sense of shame, loss of self-esteem and self-worth, and stigma.
The petitioners belong to different parts of the country and are well established in their professional life. Some of them are scientists, teachers, entrepreneurs and researchers and are of different age groups. The youngest is 19-year-old pursuing his studies in IIT Delhi and the oldest graduated from IIT in 1982. One of the petitioners was a batchmate of former RBI governor Raghuram Rajan. Most of the petitioners, also 2 female and one transwoman, are recent alumni of IITs.
“Despite being amongst the brightest mind in the country, having graduated from top national institutions, with the best possible opportunities available in terms of career, they are nevertheless criminalised by the archaic colonial provision in Section 377 and are deprived of the rights and freedom guaranteed to them by the Constitution,” the petition said.
“As a result, several of the petitioners have had to grapple with depression, self-harm, and other mental health issues, including even suicidal thoughts and attempts, all of which have had a very deleterious effect on their academic and career prospects,” they said while giving details of harrowing time they had to face in society due to their sexual orientation.
They said that unlike heterosexual persons, they had been deprived of opportunities to freely seek love and companionship with partners of their choice and thereby denying them “an essential and immutable aspect” of their right to life. “The stigma, silence and violence that Section 377 brings in its wake, deeply hurt their professional promise and personal fulfilment. It has rendered many of them subject to mental trauma and illness that they continue to grapple with. Section 377 has contributed to the brain drain of LGBT alumni including some petitioners from IITs,” they said in the petition.
They submitted the penal provision legitimizes the stigma associated to the sexual orientation and it relegates them to second-class citizenship. The petitioner said that they were subjected to mental trauma and illnesses such as clinical depression and anxiety due to the law. “The stigma, silence and violence that Section 377 brings in its wake has led to some of us dealing with suicidal tendencies and some others have attempted suicide in the past,” they said.
They urged the court to intervene and finally settle the controversial issue as the government and Parliament had been reluctant to examine the issue. “The silence of our legislative wing and its ineffectiveness to even consider debating the need for the existence of this law is shameful to say the least,” they said.