"Even if it is a Constitution Bench, arguments should not go one for days on end." - Jayna Kothari
"Even if it is a Constitution Bench, arguments should not go one for days on end." - Jayna Kothari

There is another constitutional challenge to Section 377 in the Supreme Court

Aditya AK

Yet another salvo has been fired in the battle to rid the statute books of Section 377 of the Indian Penal Code. This time around, a group of transgender persons from Karnataka has challenged the constitutional vires of the provision.

The petition has been filed through Centre for Policy and Research in Law (CLPR), co-founded by advocate Jayna Kothari. The basis of the challenge rests on the apex court’s 2014 decision in National Legal Service Authority v. Union of India, popularly known as the NALSA judgment.

In that verdict, it was held that the transgender community has the right to gender identity and gender orientation as an integral part of their right to life guaranteed under Article 21. The petitioners’ claim is that if transgender persons are to express their gender and sexual identities freely, they would be criminalised under s. 377 of the IPC.

The petition also brings to light the harassment sexual minorities face on a daily basis, as a result of the provision. A report titled Human Rights Violations Against Transgenders in Karnataka depicts violence by the police that sexual minorities face and highlights various first person accounts of gender-based violence.

Presently, the curative petition filed against the Supreme Court judgment in Suresh Kumar Koushal is pending before a Constitution bench.

The present petition notes the difference in views of the apex court in the two cases.

“Whereas in Suresh Kumar Koushal it was observed that there is no material to justify a finding that homosexuals, gays, etc. are being subjected to discriminatory treatment either by the State or its agencies or the society, in NALSA this Hon’ble Court recognized the widespread oppression and discrimination faced by members of the transgender community, which includes homosexuals, etc.

Thus, these two judgments reflect differing views, and hence this petition should be placed before the Constitution Bench that is hearing the other pending curative petitions on Section 377.”

Moreover, the petition states that Section 377 does not meet the test of reasonable classification under Article 14 of the Constitution.

“There is no intelligible differentia that justifies the classification between transgender persons and persons of other genders. Section 377 by criminalizing carnal intercourse ‘against the order of nature’ which means non-penile-vaginal intercourse between a man and a woman, makes an unintelligible classification against transgender persons because their gender identity and sexual orientation is not recognized within section 377, and hence all their acts of sexual intercourse would automatically fall as being ‘against the order of nature’ thus making them criminal offences. Such classification is unreasonable, arbitrary and in violation of the right to equality under Article 14.”

The issues touched upon in the petition bear a semblance to the one filed by five LGBTQ activists last month.

In that matter Senior Advocate Arvind Datar had appeared for the petitioners.

Read the petition:

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