Professional Documents
Culture Documents
Gulmohar Park,
Petitioner
Versus
1. Government of NCT of
Social Welfare
Delhi Secretariat
]
]
ITO,
New Delhi
2. Commissioner of Police,
Police Headquaters,
ITO
New Delhi
11,Lancess Road,Timarpur,
Delhi-110054
]
]
]
a) Ministry of Home
b) Ministry of Health
c) Ministry of Social
Welfare
New Delhi
Respondents
AND
AND
TO,
THE HONBLE THE CHIEF JUSTICE AND
HIS
COMPANION JUSTICES OF THIS HONBLE
COURT
THE
HUMBLE
PETITION
OF
THE
PETITIONER
ABOVENAMED
1.
ARRAY OF PARTIES
2.
and
with
prevention,
specific
which
populations
involves
that
are
especially
the
MSM
community.
enable vulnerable
The
Petitioners
HIV-prevention
work
has
5.
7.
8.
is
implementing
charged
policies
with
for
formulating
the
prevention
and
of
NACO
10.
11.
SECTION 377
12.
Section 377 as
follows:
Unnatural Offences, - Whoever voluntarily has
carnal intercourse
punished
with
liable to fine.
Explanation,
Penetration
is
sufficient
to
QUESTIONS OF LAW
13.
human
dignity,
privacy
and
A.
B.
Infringement
of
the
right
to
privacy
not
justifiable
Whether Section 377s enforcement of public
morality is a sufficiently compelling state interest to
justify infringement of the fundamental right to
privacy under Article 21?
C.
relations is
unreasonable
and
arbitrary
and
I.
II.
D.
I.
ground
of
sex
includes
prohibition
of
II.
Whether
Section
377s
criminalization
of
E.
Article 21
I.
10
II.
Whether
Section
377s
proscription
of
non-
III.
F.
the fundamental
I.
Whether
Section
377s
criminalization
of
III.
a)
ability
to
make
personal
11
b)
by
sexuality
minority
groups
of
association
and
assembly,
as
c)
G.
14.
12
and
therefore
acceptable,
all
penetrative sexual activity, other than penilevaginal, between both heterosexual and samesex couples, is considered to be against the order
of nature and thus criminally proscribed under
Section 377.
16.
13
17.
18.
for
the
subsequent
criminalization
of
19.
20.
14
21.
other
colonized
countries
in
that
period.
22.
23.
had
historically
existed
Indians
with
15
24.
26.
16
27.
non-reproductive
consequences,
then
than
Gay:
citizens
report
on
28.
17
29.
are
outmoded
and
absurd.
30.
31.
18
33.
377
discriminatory
perpetuates
beliefs
negative
towards
and
same-sex
generally,
underground
HIV/AIDS
which
cripples
prevention efforts.
a)
Section
377
implemented
predominantly homosexual
34.
against
conduct
and
homosexual
couples,
the
19
No.
CCPR/c/50/488/1992.
(hereinafter
Toonen).]
b)
lives of
35.
homosexuals
Thus, the
c)
36.
is
demonstrating
that
homosexual
private
manifestation
of
an
individuals
37.
20
Socio-anthropological Evidence
38.
prominent
historical
figures
have
considerable
presence
of
homosexual
Socio-scientific Evidence
39.
21
and
7%
of
the
women
were
in
their
lives,
and
that
the
sample
is
now
generally
accepted.
Studies in other countries also show that the
percentage
of
persons
who
indulge
in
22
Medical Evidence
40.
to
be
an
It is commonly
immutable
personal
41.
HIV/AIDS PREVENTION
42.
By
criminalizing
predominantly
homosexual
23
HIV-prevention
work
becoming
near
A.
43.
networks
and
meeting
places.
These
45.
24
individuals
to
have
open
and
long-lasting
rendering
individuals
(and
their
46.
of
such
spaces
would
permit
The
the
B.
47.
25
48.
49.
which
successfully
HIV/AIDS
conducted.
prevention
Clearly,
may
the
be
major
50.
to
successful
public
health
interventions.
openly,
thus
driving
them
Having been
51.
26
by
the
legal
framework,
by
HIV/AIDS
among
these
marginalized
52.
the
claim
that
legislation
against
27
homosexual
acts
constituted
reasonable
or
53.
The presence of
A.
I.
28
II.
III.
Indeed, no
29
IV.
a)
1998
(1)
BCLR
1517
(CC),
b)
of
happiness
in
the
Indian
Constitution:
There can be no doubt that the makers of our
Constitution wanted to ensure conditions
favourable to the pursuit of happiness.
30
c)
of
action
from
state
d)
This
private
sphere
is
thus
principles:
individual
31
e)
f)
private,
relations
entitled to protection as
is
consensual
sexual
a
private,
intimate
associations
in
32
a)
b)
boundaries
of
the
privacy
sphere
private,
consensual
sexual relations.
[T]he right to satisfy [ones] intellectual and
emotional needs in the privacy of [ones] own
home [T]he right of an individual to conduct
intimate relationships in the intimacy of his or
her home seems to me to be the heart of the
Constitutions protections of privacy.
Bowers v. Hardwick, 478 US 186 (1986) at
205-06,
per
Blackmun
J.s
dissenting
c)
33
d)
relationships.
Since
private,
his
own,
his
family,
marriage,
e)
of
the
makers
of
the
of
Article
21
requires
f)
Indeed,
(i)n
the
application
of
the
34
Individual Autonomy
VI.
in
accordance
with
individual
autonomy.
[See Gobind v. State of M.P. citing the Warren &
Brandeis paper.]
b)
life,
community
welfare
and
the
expressing
our
sexuality,
we
act
35
c)
of
personal
liberty
and
that
consensual
sexual
Without
relations
are
d)
which
include
private,
VII.
Application
of
International
Law
to
the
36
have
interpreted
and
international
law.
commonly
been
expanded
with
Based
repeatedly
the
upon
aid
of
domestic
that
international
human
rights
are
indeed
applicable
to
the
a)
It is also well
State Bank of
37
b)
Indian
jurisprudence
has
relied
upon
including
what
Part
III
of
the
Constitution.
[In addition to the decisions referred to above, see
Citizens for Democracy v. State of Assam, (1995) 3
SCC 743; Chairman, Rlwy Board v. Chandrima
Das, (2000) 2 SCC 465 (reliance upon Universal
Declaration of Human Rights, Covenant on Civil and
Political Rights and Convention of Economic, Social
and Cultural Rights).)
c)
and
norms
for
construing
International
Covenants
and
their
38
instruments
and
their
accompanying
a)
b)
It
is
undisputed
that
private,
adult,
c)
2.
39
d)
1.
constitutes
continuing
manifestation
of
the
human
40
2.
male-to-male
ruled:
in
sodomy.
the
The
personal
3.
continuously
and
directly
IX.
41
a)
b)
X.
B.
42
I.
Collector
of
Malabar
v.
Erimmal
II.
a)
Privacy-dignity
claims
deserve
to
be
b)
Assuming
explicitly
the
guaranteed
fundamental
to
citizen
rights
have
43
III.
b)
44
c)
to
which
the
citizen
alone
is
d)
to
the
criminalization
of
noncommercial,
sexual
choices
2.
Powell at 338.
Simply because something is beyond the
pale of majoritarian morality does not place it
45
to
justify
criminalizing
private
3.
1997) at 125-6.
The right of consenting adults, regardless of
gender, to engage in private, non-commercial
sexual conduct strikes at the very core of [the]
constitutional
right
of
individual
privacy;
4.
and
in
consequence
an
46
offended
or
disturbed
by
the
IV.
curtailment
of
such
an
important
fundamental freedom.
C.
CRIMINALIZATION
PROCREATIVE
UNREASONABLE
OF
CONSENSUAL,
SEXUAL
AND
RELATIONS
ARBITRARY
NONIS
AND
I.
47
II.
and
unnatural
(penile-non-vaginal)
IV.
of
rational
nexus
between
This
the
A.
sexual
misunderstandings
stereotypes
and
48
B.
377s
legislative
objective
of
C.
relations
of
homosexuals,
which
D.
sexual
morality
is
arbitrary
and
V.
It
is
further
submitted
that
the
punishment
non-procreative
is
arbitrary
and
49
a)
is
based
upon
an
out-dated
b)
c)
The
basis
of
the
legislative
object
of
psychology
no
longer
view
50
ii)
that
homosexual
relations,
research
posits
that
sexual
iii)
51
d)
alone.
Although
the
scientific
e)
conception
of
tolerated
lifestyle
and
the
Americas
for
persons
Thus, the
B.
Legislative
Object
Discriminatory
and
VII.
52
a)
The
legislative
objective
is
to
punish
which
thereby
encompasses
b)
c)
discriminatory
attitudes
concerning
53
non-procreative
sexual
acts
criminalizes
d)
of
no
concern
morally
or
constitutionally.
C.
from
arbitrariness.
Indeed,
the
b)
377s
prohibition
of
unnatural
54
The
c)
D.
consenting
evidence
of
provisions
palpable
objective
unreasonable.
adults
harm
both
absent
deems
arbitrary
any
the
and
to
which
the
citizen
alone
is
55
X.
Prescribed
Punishment
Disproportionate
to
Proscribed Activity
XI.
since
encompasses
the
private
impugned
sexual
provision
activity
between
Therefore,
it
is
submitted
that
the
Decisions
in
legislation
foreign
adversely
jurisdictions
affecting
have
held
homosexuals,
value
to
Article
14,
since
its
56
a)
b)
minorities
from
discriminatory
Its
have
been
subjected
to
individuous discrimination.
XIII. Section 377s legislative object is both arbitrary and
unreasonable, and thus there exists no rational
nexus to the object of the provision. It is submitted
that the factors discussed above demonstrate this
57
to
the
provisions
proscribed
activity
D.
I.
Article 15 prohibits
discrimination on several
It is
a)
First,
Accordingly, sex is by
b)
58
consider
women
to
be
the
only
orientation
alternative
sexual
discrimination,
orientations
since
challenge
c)
Indeed,
the
purpose
underlying
the
d)
e)
societal
problems
concerning
59
f)
to
the
felt
and
discernible
II.
sexuality
and
therefore
constitutes
a)
Specifically,
377
is
it
discriminatory
because
it
legislation
criminalizes
b)
Section
377s
criminalization
of
non-
preferences.
an
Thus,
the
impermissible
provision
basis
for
60
c)
d)
When
everything
associated
with
of
its
sexual
non-conformity,
III.
61
E.
I.
a)
Rights
i)
materials
pertinent
to
sexual
ii)
individuals
associations,
activism.
to
from
intimate
political
Section
377s
personal
assembly
and
independent
62
fundamental
freedoms
guaranteed
b)
i)
is
sex
is
doctrinaire
and
outmoded
upon,
and
and
perpetuates,
discriminatory
notions
discriminatory
between
men
prohibitions
reinforce
already
on
sex
existing
ii)
the
most
important
is
the
63
this
must
be
harmful to personal
Compounding
iii)
oppressive
conduct
committed
against homosexuals.
The criminalization of sodomy in private
between consenting males
is
a severe
64
iv)
II.
(a)
and
the
reasonable
restrictions
(b)
to
interpret
the
impugned
65
as
to
whether
indeed
the
(c)
(d)
(e)
66
(f)
reasonable
restrictions
specified
(g)
freedoms
guaranteed
under
III.
IV.
F.
67
a)
The
b)
III.
In this respect,
68
On this basis, it is
C.
By
prohibiting
non-procreative,
private,
V.
Furthermore,
by
targeting
predominantly
acts
is
to
reinforce
the
VI.
69
VII.
G.
I.
consensual
sexual
activities
between
55.
395.]
56.
this petition.
57.
58.
70
PRAYER
(a)
(b)
(c)
1 and 2 herein by
(d)
(e)
AND
FOR
THIS
KINDNESS
THE
71
PETITIONER
THROUGH
ADVOCATE
Place:
Date:
Petition Drafted By
Petition Settled By