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Delhi High Court - Writ Petition
Delhi High Court - Writ Petition
Petitioner
Versus
1. Government of NCT of ]
Delhi, Through the Secretary ]
Social Welfare ]
Delhi Secretariat ]
ITO,
New Delhi
2. Commissioner of Police, ]
Police Headquaters, ]
ITO ]
New Delhi ]
2
Respondents
AND
AND
TO,
THE HON‟BLE THE CHIEF JUSTICE AND
HIS
ABOVENAMED
ARRAY OF PARTIES
SECTION 377
12. Unnatural offences is defined and punishable under
Section 377 as
follows:
QUESTIONS OF LAW
Socio-anthropological Evidence
38. The following socio-anthropological factors illustrate
that homosexuality has long been present and
tolerated in societies, and therefore cannot be
considered “unnatural”:
Homosexuality has existed throughout history,
indeed, prominent historical figures have
engaged in homosexual conduct (Alexander,
Nero, Pepy the 2nd, Sapho, Socrates, Leonardo
da Vinci, Oscar Wilde, E.M. Forster and John
Maynard Keynes);
The presence of homo-erotic literature in the
Vedic era;
Anthropological research has found homosexual
subcultures in Native American cultures, ancient
Greece, Chinese traditions, Subsaharan Africa,
and the Samurai traditions of Japan; and
The considerable presence of homosexual
subcultures today across India.
Socio-scientific Evidence
39. The following socio-scientific evidence collectively
defeats the notion that same-sex sexual relations
are “unnatural”:
The Kinsey, Geghard and other socio-scientific
studies illustrate that homosexuality is prevalent
in mainstream society:
21
Medical Evidence
40. Indeed, the fields of psychiatry and psychology no
longer treat homosexuality as a disease and regard
sexual orientation to be a deeply held, core part of
the identities of individuals. It is commonly
considered to be an immutable personal
characteristic, which is innate to the character of the
individual, dispelling the notion that it is purely by
choice when individuals engage in same-sex
behaviour. Consequently, it is submitted that same-
sexual relations may not rationally be considered as
“unnatural”, as is presumed by Section 377.
The Diagnostic and Statistical Manual of
Mental Disorders (DSM) has long since
deleted homosexuality as an illness; as has
the World Health Organization in its
classification of diseases;
HIV/AIDS PREVENTION
GROUNDS
Ordered Liberty
V. The right to privacy guaranteed under Article 21
includes private, intimate associations in
accordance with the principle of ordered liberty on
the following basis:
32
Individual Autonomy
VI. It is submitted that the right to privacy guaranteed
under Article 21 includes private, consensual sexual
relations in accordance with the principle of
individual autonomy on the following basis:
a) The right to privacy has been held to protect a
“private space in which man may become and
remain „himself””. The ability to do so is
exercised in accordance with individual
autonomy.
[See Gobind v. State of M.P. citing the Warren &
Brandeis paper.]
2. Powell at 338.
“Simply because something is beyond the
pale of „majoritarian morality‟ does not place it
45
VII. Section 377 prohibits all acts that are “against the
order of nature”. In so doing, the object of the
legislation is to maintain a public code of sexual
behaviour. It is submitted that no rational nexus
52
58. The Petitioner has not filed any petition in this Court
or any other High Court or in the Supreme Court of
India in respect of the subject matter of this Petition.
70
PRAYER
: PETITIONER
THROUGH
ADVOCATE
Place:
Date:
Petition Drafted By
Petition Settled By