NEW DELHI: Tehseen Poonawalla, a gay rights and social activist, besides being a supporter of the Congress Party, said Tuesday that irrespective of the Supreme Court’s ruling on Section 377 of the Indian Penal Code (IPC), which criminalises sexual activities "against the order of nature", arguably including homosexual acts, he would plead with the apex court to legalise gay marriage.
Poonawalla, who recently filed a writ petition against the Juvenile Justice Act, which Parliament passed last December, wrote on his Facebook page, "I really hope the highest court of our land does justice to those who have a different sexual orientation. However, either way that the curative petition goes, I will be pleading before the court to legalise gay marriage. If #377 is struck down, it makes my task easier, if it is not, I will try finding a way around this inhuman law, through my petition."
He further wrote: “I have a solid legal strategy, and I want to fight this battle for justice. I hope to file my petition within a week of the judgment (whatever it may be on Section 377), and I'm confident justice will be served. Even if 377 is not struck down, I will go before the courts to allow same sex marriage.”
On Tuesday, the Supreme Court is expected to conduct an open court sitting on a curative petition filed by gay rights activists challenging its verdict on “criminalising homosexuality” in the country.
An apex court bench headed by the Chief Justice of India Mr. Justice T.S. Thakur had earlier agreed to hear the curative petition against the apex court’s December 2013 judgement upholding the validity of Section 377 of the Indian Penal Code (IPC), which criminalises sexual activities against the order of nature, arguably including the homosexual acts, and a January 2014 order by which it had dismissed a bunch of review petitions.
The petitioners include the NGO Naz Foundation, working for the Lesbian, Gay, Bisexual, and Transgender (LGBT) community.
The plea states that the judgement was reserved on March 27, 2012, but a verdict was delivered after around 21 months. During this period, lots of changes took place, including amendment in laws, which were not considered by the bench, which delivered the judgement.
Gay rights activists have said that thousands from the LGBT community have become open about their sexual identity during the past four years after the Delhi High Court “decriminalised” gay sex in 2009, and they were now facing the threat of being prosecuted.
Meanwhile, the Madras High Court on Monday observed that homosexuality could be a ground for divorce. The court’s observation came while hearing two matrimonial discord cases involving a gay man in one and a lesbian woman in the other.
Chapter XVI, Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual acts.
The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 12 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.