5 LGBT citizens move apex court to recognise “sexuality” as Fundamental Right [Read petition]

An Article 32 petition has been filed in the Supreme Court praying that sexuality and sexual autonomy be declared part of the fundamental rights guaranteed under Article 21 of the Constitution of India..The petition has been filed by five members of the LGBT community from different fields. The five are – dancer Navtej Singh Johar, journalist Sunil Mehra, chef and restaurateur Ritu Dalmia, hotelier and historian Aman Nath and a consultant in the Food Industry, Ayesha Kapur..They have contended that their rights to sexuality, sexual autonomy, and choice of sexual partner are violated by Section 377 of the Indian Penal Code..The petition is listed for hearing tomorrow as item 25 in court 13 before a Bench presided by Justice SA Bobde and Justice Ashok Bhushan..In the petition drawn by advocates Arundhati Katju and Himanshu Suman and filed through advocate EC Agrawala, the petitioners have admitted that the Constitutionality of Section 377 is already under the scrutiny of the Supreme Court in a curative petition. However, they have contended that the issues raised by them are “varied and diverse” from those raised in the curative petition..The petitioners have contended that their rights have been inexorably constricted and their rights infringed upon; that Section 377 criminalizes the very existence of LGBT persons..“Despite their formidable achievements and contribution to India, they are denied their right to sexuality, the most basic and inherent of fundamental rights. Section 377 of the IPC renders them criminal in their own country. Section 377 does not criminalise only the specific acts whose commission a law abiding citizen may avoid and steer clear of. Rather it criminalizes the very existence if LGBT persons by criminalising their sexuality, an attribute which is as inherent and intrinsic to a person as their race or gender.”.They have submitted that sexuality of a person is part of a human being’s persona and criminalizing sexual acts between consenting adults violates the fundamental right under Article 21..“Sexuality lies at the core of human being’s persona. Sexual expression, in whatever form, between consenting adults in the privacy of a home ought to receive the protection of fundamental rights.”.The petitioners have contended that laws should be judges on the basis of Constitutional and not public morality..“The Constitution of India does not envisage a heterogenous society but rather recognizes celebrates and protects the plurality and diversity of Indian society and culture. ….criminal laws and pre-constitutional statutes should be judged on the touchstone of Constitutional and not public morality..Section 377 of IPC is a relic of colonial rule and of 19th century Victorian morality.”.The petition categorially states that the judgment rendered by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation has not considered any of the aspects raised by the petitioners..Additionally, the petition has relied on the judgment of the Supreme Court in NALSA v. Union of India in which the court had held sex and gender as psychological attributes rather than biological..“This court in NALSA v. Union of India has recognised that sex and gender are primarily psychological attributes rather than biological phenomena/ attributes. This Hon’ble court also recognized sexual orientation as being integral to an individual’s personality and as the most basic aspect of self-determination.”.The petitioners have also alleged violation of Article 14 on the ground that State has a positive obligation to create and equal and just society and a law cannot render sexual minorities invisible..The reliefs sought by the petitioners are essentially three in number. Their first prayer is.“to declare “Right to sexuality”, “Right to Sexual Autonomy” and the “Right to choice of sexual partner” to be part of Right to life guaranteed under Article 21 of the Constitution.”.Aside from these, they have prayed that Section 377 be declared unconstitutional or in the alternative, exclude consensual sexual acts between adults in private from the ambit of Section 377..The case will be taken up as item 25 in court 13. Senior Advocates Kapil Sibal and Arvind Datar are slated to appear for the petitioners, according to Times of India..Image taken from here..Read the petition below.