6. The petitioner NGO has been working in the field of HIV/AIDS
Intervention and prevention. This necessarily involves interaction with such sections of society as are vulnerable to contracting HIV/AIDS and which include gay community or individuals described as “men who have sex with men” (MSM). For sake of convenient reference, they would hereinafter be referred to as “homosexuals” or “gay” persons or gay community. Homosexuals, according to the petitioner, represent a population segment that is extremely
vulnerable to HIV/AIDS infection. The petitioner claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found
to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in
minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.
7. According to the petitioner, Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being “against the order of nature”. The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society. In fact, studies of Section 377 IPC jurisprudence reveal that lately it has generally been employed in cases of child sexual assault and abuse. By
criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and
sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision. It has been submitted that the fields of psychiatry and psychology no longer treat homosexuality a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals.
8. The petitioner submits that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens, in order to be meaningful, the pursuit of happiness encompassed within the concepts of privacy, human dignity, individual autonomy and the human need for an intimate personal sphere require that privacy – dignity claim concerning private, consensual, sexual relations are also afforded protection within the ambit of the said fundamental right to life and liberty given under Article 21. It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations or sexual preferences figure prominently within an individual’s personality and lie easily at the core of the “private space”, they are an inalienable component of the right of life. Based on this line of reasoning, a case has been made to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably
abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21. The petitioner argues that fundamental right to privacy under Article 21 can be abridged only for a compelling state interest which, in its submission, is amiss here. Also based on the
fundamental right to life under Article 21 is the further submission that Section 377 IPC has a damaging impact upon the lives of homosexuals inasmuch as it not only perpetuates social stigma and police/public abuse but also drives homosexual activity underground thereby jeopardizing HIV/AIDS prevention efforts and, thus, rendering gay men and MSM increasingly vulnerable to contracting HIV/AIDS.
9. Further, it has been submitted on behalf of the petitioner that Section 377 IPC's legislative objective of penalizing “unnatural sexual acts” has no rational nexus to the classification created between procreative and nonprocreative sexual acts, and is thus violative of Article 14 of the Constitution of India. Section 377's legislative objective is based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical rationale which render it arbitrary and unreasonable. It is further the case of the petitioner that the expression “sex” as used in Article 15 cannot be read restrictive to “gender” but includes “sexual orientation” and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right
against discrimination. The petitioner argues that criminalization of predominantly homosexual activity through Section 377 IPC is discriminatory on the basis of sexual orientation and, therefore, violative of Article 15. It is further the case of the petitioner that the prohibition against homosexuality in Section 377 IPC curtails orinfringes the basic freedoms guaranteed under Article 19 (1) (a) (b) (c) & (d); in that, an individual’s ability to make personal statement about one’s sexual preferences, right of association/assembly and right to move freely so as to
engage in homosexual conduct are restricted and curtailed.
10. Broadly on the above reasoning, it has been submitted that there is a case for consensual sexual intercourse (of the kind mentioned above; i.e. homosexual) between two willing adults in privacy to be saved and excepted from the penal provision contained in Section 377 IPC.