NEW DELHI: A Constitutional challenge to the draconian Section 377 of the Indian Penal Code, which criminalises homosexuality, has begun in the Supreme Court of India. The top court has issued a notice to the Centre and to the Uttar Pradesh government on the issue.
The Supreme Court's notice had come on a plea filed by noted LGBT rights activist Arif Jafar that any law against or ban on sex between consenting adults in private is a violation of the rights and provisions of the Constitution of India, news agency ANI reported.
This comes in light of two important developments that could have a bearing on the Constitutional validity of Section 377 - the referral of the case to the Constitution Bench in January and the August 2017 ruling that privacy is a fundamental right.
The battle against Section 377 had gained steam after the 2001 arrest of Arif Jafar by the Uttar Pradesh government. At the time of his arrest, Jafar had been at the office of his NGO, the Bharosa Trust, running a training camp for activists on how to reach out to reluctant homosexual men to get them to open up and receive treatment where necessary.
Jafar had been arrested on charges of 'promoting homosexuality', and spent 49 days in jail before he was granted bail by the Allahabad High Court.
The Delhi High Court had ruled in 2009 that Section 377 was 'bad in law' and that it did not hold Constitutional validity. The Supreme Court four years later overturned this verdict, saying it was valid, and that the job of changing law fell to Parliament and not the courts.
The Constitution Bench that hears the case will comprise of Chief Justice Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan.