IN THE SUPREME COURT OF INDIA
(CRIMINAL ORIGINAL JURISDICTION)
WRIT PETITION (CRIMINAL) NO. ___________ OF 2016
(Under Article 32 of the Constitution of India)
IN THE MATTER OF:
1.Navtej Singh Johar
Aged about 56 years
Son of Sh. Ujagar Singh
Resident of F-27, Green Park
New Delhi 110016
2.Sunil Mehra
Aged about 60 years
Son of late Sh. Hargopal Mehra
Resident of F-27, Green Park
New Delhi 110016
3.Ritu Dalmia
Aged about 43 years
Daughter of Sh. Natwar Dalmia
Resident of M-113 (ground floor)
Greater Kailash – II, New Delhi 110048
4.Aman Nath
Aged about 65 years
Son of Sh. Ashok Nath
Resident of 12, Jaipur Estate
Nizamuddin East, New Delhi 110013
5.Ayesha Kapur
Aged about 41 years
Daughter of Sh. Vijai Kapur
Resident of G-9 (ground floor)
Maharani Bagh,
New Delhi 110065

….PETITIONERS

VERSUS
Union of India
Through the Secretary,
Ministry of Law & Justice
Shashtri Bhawan,
New Delhi

… RESPONDENTS

 PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA SEEKING A DECLARATION THAT SECTION
377

OF

THE

INDIAN

PENAL

CODE,

1860

IS

UNCONSTITUTIONAL
-------------------------------------------------------------------------------TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS OTHER COMPANION JUDGES
OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIONERS ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1.The Petitioners are lesbian, gay and bisexual [‘LGBT

persons’] citizens of India whose rights to sexuality, sexual
autonomy, choice of sexual partner, life, privacy, dignity and
equality,

along

with

the

other

Fundamental

Rights

guaranteed under Part III of the Constitution, are infringed by
Section 377 of the Indian Penal Code, 1860. In any event,
the challenge to constitutional validity of Section 377 IPC is
pending before this Hon’ble Court in the case of Naz
Foundation Trust v. Suresh Kumar Koushal & Anr being
Curative Petition (Civil) No. 88-119/2014. However, the
issues for challenge to Section 377 IPC raised by the
Petitioners in the present petition are varied and diverse from
those raised in the Curative Petition. Thus, the Petitioners
have no other efficacious remedy but to approach this

 Hon’ble Court by way of the present petition under Article 32
of the Constitution of India challenging the constitutional
validity of Section 377 IPC.
1A.

That the Petitioners have not approached any other authority
for redressal of the grievances agitated in the present
Petition.
2.The issue of constitutionality of Section 377 has come to

be placed before the Constitution Bench in the following
background:
i.On 06.12.2001, Naz Foundation v. Govt.
of NCT of Delhi & Ors. [W.P. (C) No. 7455/2001] was filed
and registered before the Delhi High Court. The said
petition, inter alia, challenged the constitutionality of
Section 377 IPC.

ii.The Delhi High Court allowed the
petition filed by Naz Foundation v. Govt. of NCT of Delhi
& Ors. [W.P. (C) No. 7455/2001] by declaring that Section
377 of the Indian Penal Code, 1860 is violative of Articles
14, 15 and 21 of the Constitution insofar as it criminalizes
consensual sexual acts of adults in private. A copy of the
judgment dated 02.07.2009 passed by the Delhi High
Court in the case of Naz Foundation v. Govt. of NCT of
Delhi & Ors. reported in 2009 (111) DRJ 1 is annexed
hereto and marked as ‘ANNEXURE P-1’ (At pages 52 to
109).
iii.On 09.07.2009, this Hon’ble Court
issued notice on a petition titled as Suresh Kumar

 Koushal & Anr. v. Naz Foundation & Ors. [SLP (C) CC
No. 9255/2009], which challenged the judgment of the
Delhi High Court dated 02.07.2009 passed in the case of
Naz Foundation.
iv.Vide judgment dated 11.12.2013, this
Hon’ble Court allowed the appeal in the case of Suresh
Kumar Koushal & Anr. v. Naz Foundation & Ors. [Civil
Appeal No. 10972/2013] and held that Section 377 of the
Indian Penal Code, 1860 does not suffer from the vice of
unconstitutionality. A copy of the judgment dated
11.12.2013 passed by this Hon’ble Court in the case of
Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.
reported in (2014) 1 SCC 1 is annexed hereto as
‘ANNEXURE P-2’ (At pages 110 to 190).
v.On 28.01.2014, this Hon’ble Court
dismissed the review petition filed by Naz Foundation
being Review Petition (C) No. 41-55/2014 titled as Naz
Foundation (India) Trust v. Suresh Kumar Koushal & Ors,
wherein the judgment of this Hon’ble Court dated
11.12.2013, was impugned. A copy of the order dated
28.01.2014 passed by this Hon’ble Court in Review
Petition (C) No. 41-55/2014 reported in (2014) 3 SCC
220 is annexed hereto as ‘ANNEXURE P-3’ (At pages
191 to 192).

 vi.Pursuant to the dismissal of the Review
Petition, Naz Foundation filed a Curative Petition being
Curative Petition (Civil) No. 88-102/2014 titled as Naz
Foundation Trust v. Suresh Kumar Koushal & Anr,
impugning the judgment and order[s] dated 11.12.2013
and 28.01.2014. Vide order dated 22.04.2014, this
Hon’ble Court directed that the Curative Petition[s] be
listed before the Court. A copy of the order-dated
22.04.2014 passed by this Hon’ble Court in Curative
Petition (C) No. 88-102 of 2014 in Review Petition (C) No.
41-55 of 2014 in Civil Appeal No. 10972 of 2013 and other
connected matters is annexed hereto and marked as
‘ANNEXURE P-4’. (At pages 193 to 194)

vii.Thereafter, vide order dated 02.04.16,
this Hon’ble Court, observing that the issue sought to be
raised are of considerable importance & public interest,
ordered the petitions to be placed before a Constitution
Bench. A copy of the order dated 02.02.2016 passed in
the case of Naz Foundation Trust v. Suresh Kumar
Koushal & Anr being Curative Petition (Civil) No. 88119/2014 is annexed hereto as ‘ANNEXURE P-5’. (At
pages 195 to 200)

 3.The present Writ Petition, thus, raises the following

important questions of law for the consideration of this
Hon’ble Court:
A. Whether Section 377 of the Indian Penal Code is
unconstitutional and violative of Part III of the Constitution
of India, and thus, ought to be struck down?
B. Alternatively, whether Section 377 of the Indian Penal
Code ought to be read down to exclude its applicability to
consensual sexual acts of adults in private, so as to safeguard the fundamental rights of such consenting adults?
Details of the Petitioners
4.The Petitioners are upstanding, public-spirited citizens

who live and work in India and have the greatest love for this
country and faith in the rule of law. They are highly
accomplished citizens and their work has been duly
recognized by the Respondent as well as national and
international bodies. They contribute to the economic, social
and cultural development of India through their business, art,
and writing.
5.The Petitioner No. 1 is one of India’s leading dancers, a

master of the classical art form of Bharatnatyam and the
recipient of the 2014 Sangeet Natak Akademi Award for
“Creative Dance/Choreography.” His performance draws
upon the plural vocabularies of Bharatnatyam, Yoga and

 physical theatre. Born into a middle-class neighborhood in
Chandigarh, Petitioner No. 1 was trained in Bharatnatyam at
the

prestigious

Kalakshetra,

Chennai

and

studied

Performance Theory at New York University, New York. He is
a globally renowned performer and an ambassador for Indian
culture. He served as the Performance Director of the
Commonwealth Parade for the Queen’s Golden Jubilee
Celebrations in London in 2002 and has also performed with
the New York City Opera. Petitioner No. 1 has been the
recipient of the Times of India Fellowship in 1995, the
Charles Wallace Fellowship in 1999, and is presently the
holder of the “Interweaving Performance Cultures Fellowship”
at Freie University, Berlin (Germany). The Petitioner No. 1
has also set up a Dance Training Program along with
musician Justin McCarthy which focuses on incorporating
dance technique with dance theory and history. The
Petitioner No. 1 taught at the University of Michigan in 2010,
and presently teaches at Ashoka University. The Petitioner
No. 1 is a co-founder and Artistic Director of Studio Abhyas,
a centre for yoga, dance and care of stray animals and urban
development in New Delhi.
6.The Petitioner No. 1 trained in Yoga at Krishnamacharya

Yoga Mandiram, Chennai and presently also teaches Yoga.
The Petitioner No. 1 received the Sri Krishna Gana Sabha
Award for his choreographic work Abhinaya in 2010 and the

 Mohan Khokar Overall Excellence Award for Dance in 2012.
Petitioner No. 1 has also written several articles and scholarly
papers, including inter alia Deepfreeze Nritya (The Outlook,
1997),

Framing

the

Fluid-

Multiple

Perspectives

on

Bharatnatyam: philosophical, historical, attitudinal, aesthetic
and

socio-cultural

(Asia

Intangible

Cultural

Heritage

Encyclopaedia, 2006), Physical Traditions as Continuity (Lila
Foundation for Translocal Initiatives, 2014), Why Yoga is
important as a dancer, as a person (The Wire, 2015), and
How the Transformative Practice of Yoga has gradually been
drawn into the chauvinism of Identity Politics (The Caravan,
2015). True typed copy of the Sangeet Natak Akademi
Award presented to Petitioner No. 1 in 2014 alongiwht
photocopy of its original is annexed hereto as ANNEXURE
P-6. (At pages 201 to 202)
True typed sample copy of the article written about
Petitioner No.1 Sh. Navtej Singh Johar and his body of work
dated Nil is annexed hereto as ANNEXURE P-7. (At pages
203 to 204)
True typed copy of article written by Petitioner No.1 Sh.
Navtej Singh Johar dated Nil is annexed hereto as
ANNEXURE P-8. (At pages 205 to 216)
Performance photograph of Petitioner No.1 Sh. Navtej
Singh Johar is annexed hereto as ANNEXURE P-9.
pages 217)

(At

 7.The Petitioner No. 2 was born in Jaipur and is a

renowned journalist who has written hundreds of articles and
columns for leading publications such as Outlook, Tehelka,
India Today, Pioneer, Saturday Times, Swagat and Discover
India in a career spanning over three decades. Petitioner No.
2 also taught English Literature as an Assistant Professor at
the University of Rajasthan, Jaipur from 1981-88. Petitioner
No. 2 was also formerly the editor of Maxim India.
Throughout his career, Petitioner No. 2 has sought to bring to
public attention social issues which otherwise have been
largely ignored, inter alia on women’s marital rights
(“Empowering Edict” Outlook, 1996), ignorance of doctors
regarding HIV/AIDS (“Fatal Ignorance” Outlook, 1996),
pollution threat to Narara Coral Reefs, Gujarat (“Threatened
Idyll” Outlook, 1996), violence during Partition (“Sufferers &
Survivors” Outlook, 1997), absence of fire safety measures
for Delhi’s public buildings (“337 more ‘Upahars’ ” Outlook,
1997), medical negligence leading to blindness for 16
persons at Amritsar Mental Hospital (“Gross Oversight”
Outlook, 1998). Petitioner No. 2 is also acclaimed as an art
and culture critic who has written on inter alia children’s plays
in Delhi and the Jaipur School of miniature painting.
8.The Petitioner No. 2 was also involved during 1999-2001

with Centrestage, a weekly culture show on DD Metro and

 DD International. During this period he directed, produced,
wrote and anchored 86 episodes of Centrestage. Petitioner
No. 2 also shot 45 short films on Indian classical and
contemporary dance, which are currently a part of the French
National Archive of Dance and are marketed across 44
countries by the Alexander Street Press Conglomerate. The
Petitioner No. 2 has also authored two books “Rajasthan, An
Enduring Romance” and “Desert Lion: The Life and Times of
Bhawani Singh of Jaipur” both published by Roli Books in
1990 and 2016, respectively. Petitioner no. 2 has written and
spoken about having experienced violence as a gay man and
being unable to approach the police because of fear of
prosecution under the impugned Section 377 of the Indian
Penal Code, 1860. In fact, the Petitioner No. 2 might have
become a civil servant for the Respondent, as he had duly
cleared the Preliminary examination for admission to the
central civil services.
9.However, the Petitioner No. 2 chose not to sit for the

Mains Examination as he was apprehensive about his career
prospects in State employment because of criminalization of
his sexual orientation. In this manner, the country has lost the
services of countless well-qualified, upstanding citizens due
to this draconian law. True typed sample copy of the article
authored by Petitioner No.2 Sh. Sunil Mehra dated

 26.10.2015 is annexed hereto as ANNEXURE P-10.

(At

pages 218 to 220).
A copy of the brief description of the books authored by
Petitioner No.2 Sh. Sunil Mehra dated Nil is annexed hereto
as ANNEXURE P-11. (At pages 221 to 222)
10.Petitioners No. 1 and 2 have been in a committed

relationship for over 20 years. They have lived together since
1998, with the help and support of their families, friends and
colleagues. Together, they started Studio Abhyas, a yoga,
dance and urban development studio in New Delhi. Together,
they also conceptualized and ran the Power of Seeing
initiative

to

connect

schoolchildren

with

the

urban

environment and to inspire them to improve the city.
11.The Petitioner No. 3 is a chef, author, restaurateur and

TV personality. She is renowned as one of the leading chefs
in India and has built the much-acclaimed ‘Diva’ chain,
consisting of seven restaurants, which currently employs over
250 people. Petitioner No. 3’s ‘Diva Italian’ restaurant has
won numerous awards including the Times Food Guide Best
Italian Restaurant (2004, 2006, 2009, 2010, 2011, 2012, and
2013); Times Food Guide Outstanding Restaurant Wine List
(2005 and 2006); HT City Awards Vir Sanghvi’s Personal
Award (2007), Buurp Certified Best Wine Menu (2010), Mail
Today’s Best of the Best – Best Italian (2011), HT City

 Crystals City’s Finest Italian Restaurant (2012), Food and
Nightlife Award for Best Italian Restaurant (2012) and the
Zomato Connoisseur’s Guide to Eating Out Best Italian
Award (2013). Further, another restaurant “Latitude 28” has
won HT City Crystals City’s Finest Café (2010), Best Coffee
Shop HT City Awards Vir Sanghvi’s Personal Award (2010).
12.The Petitioner No. 3 received the “Woman Chef of the

Year” Award in 2007 and the Order of the Star of Italian
Solidarity in 2011 awarded by the decree of the President of
the Italian Republic. She is the author of popular and
acclaimed Italian cookbooks which have made her a
household name, including “Italian Khana” (2009), “Italian
Khana – bilingual miniseries in English and Hindi” (2010)
(winner of the Paris Book Fair Best Series Award (2011),
“Travelling Diva – Recipes from Around the World” (2012),
and “Diva Green – A Vegetarian Cookbook” (2013). She is
also a popular television celebrity chef and hosts “Italian
Khana” which has received the Indian Telly Awards Best
Cookery Show (2009) and Best Food Show (2010).

True

typed sample copy of the article authored by Petitioner No.3
Ritu Dalmia dated Nil is annexed hereto as ANNEXURE P-12.
(At pages 223 to 226)
A copy of the brief description of the books authored by
Petitioner No.3 Ritu Dalmia dated Nil is annexed hereto as
ANNEXURE P-13. (At pages 227 to 230)

 True copy of the certificate awarded to Petitioner No.3
Ritu Dalmia and her restaurants dated 12.6.2014 dated Nil is
annexed hereto as ANNEXURE P-14. (At pages 231 to 238)

13.The Petitioner No. 4 is a hotelier, writer and historian.

In 1984, Petitioner no. 4 and his late partner Francis
Wacziarg were among the founding members of the Indian
National Trust for Art & Cultural Heritage (“INTACH”). Later,
in 1991, Petitioner No. 4 together with Mr. Wacziarg
established the acclaimed chain of Neemrana Hotels. The
Neemrana chain of hotels has restored and preserved
several historical properties and in this manner preserved
Indian culture and traditions. The Neemrana Hotel chain has
established more than twenty-five historical properties across
twelve states and the UT of Pondicherry. Most of the
properties restored by Neemrana Hotel chain are from the
19th century, with the oldest being the Hill Fort Kesroli at
Alwar, Rajasthan from the 14th century.
14.The Petitioner No. 4 along with his late partner Sh.

Francis Wacziarg was awarded the Lifetime Achievement
Award by the Ministry of Tourism in 2014. Petitioner No. 4
has written 15 books and dozens of articles on the arts &
crafts, culture and historical architecture of India, including on
Rashtrapati Bhawan, Lutyens’ Delhi, Jodhpur’s Umaid
Bhawan, Jaipur’s architecture, the Pushkar Fair, and the

 Painted Walls of Shekhawati, Rajasthan. The Petitioner No.
4’s book on Rashtrapati Bhawan, namely, “Dome under the
Sky” has been the gift of choice by the last four Presidents of
India to visiting foreign dignitaries. His book “Jaipur: The Last
Destination” was the first Indian book to be distributed
worldwide by Christie’s, the world’s leading art auction house.
15.In 1977, the Petitioner No. 4 wrote the first catalogue &

publicity campaign for the first Indian contemporary art
auction for Times of India and Sotheby’s. Petitioner No. 4 has
been invited as a speaker at prestigious festivals such as the
Jaipur Literature Festival (2012 & 2016), TedX at Shekhawati
(2011), Pushkar Literature Festival (2009), Odisha Literature
Festival (2014) and Kumaon Literary Festival (2015). The
Petitioner No. 4 served for seven years as the curator of Art
Today (India Today’s Art Gallery). Petitioner No. 4 is on the
Board of Trustees for India Foundation for the Arts, and is the
Managing Trustee of the Neemrana Music Foundation.
Petitioner No. 4’s Neemrana Fort Palace received the award
for the Best Heritage Hotel (National Tourism Award) from
the Ministry of Tourism for 2010-11 and the award for the
Best Heritage Hotel from Outlook Traveller. In 2013, two of
the properties run by Petitioner No. 4 received the Certificate
of Excellence from TripAdvisor, i.e. Neemrana Fort Palace
and Hotel De L’Orient, Pondicherry. Petitioner No. 4 met the
late Sh. Francis Wacziarg through their common interest and

 passion in the cultural and historical heritage of India.
Petitioner No. 4 was in a committed relationship with the late
Francis Wacziarg for about 23 years till the latter’s death in
2014. True typed sample copy of the article written about
Petitioner No.4 Sh. Aman Nath and his body of work dated
Nil is annexed hereto as ANNEXURE P-15. (At pages 239
to 241)
True typed sample copy of the article authored by
Petitioner No. 4 Sh. Aman Nath is annexed hereto as
ANNEXURE P-16. (At pages 242 to 244)
A true copy of the certificates awarded to Petitioner
No.4 Sh. Aman Nath alongwith typed copy is annexed hereto
as ANNEXURE P-17. (At pages 245 to 249)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “A Dome over India Rashtrapati
Bhavan: Rashtrapati Bhavan” dated Nil is annexed hereto as
ANNEXURE P-18. (At pages 250 to 252)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Rajasthan: The Painted Walls of
Shekhavati” dated Nil is annexed hereto as ANNEXURE P19. (At pages 253 to 254)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Arts and Crafts of Rajasthan” dated Nil
is annexed hereto as ANNEXURE P-20. (At pages 255 to
256)

 A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Gota” dated Nil is annexed hereto as
ANNEXURE P-21. (At pages 257 to 258)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Jaipur: The Last Destination” dated Nil
is annexed hereto as ANNEXURE P-22. (At pages 259 to
260)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Jodhpur’s Umaid Bhawan: The
Maharaja of Palaces” dated Nil is annexed hereto as
ANNEXURE P-23. (At pages 261 to 263)
A true typed copy of book authored by Petitioner No.4
Sh. Aman Nath titled “Rajasthan: the painetd walls of
Shekhavati” dated Nil is annexed hereto as ANNEXURE P24. (At pages 264 to 265)
16.The Petitioner No. 5 spent her childhood in Mumbai

and formative years in Delhi. The Petitioner No. 5 did her
B.A. from Clark University, Massachusetts, U.S.A. with a
Double Major in Sociology and Psychology where she
graduated Magna cum Laude and received the Outstanding
Psychology Undergraduate Award. During her period of
study at Clark University, the Petitioner No. 5 was the
Student Representative for the Clark Fund in which role she
raised funds for scholarship aid and academic programs from
inter alia the alumni. The Petitioner No. 5 returned in 1998 to

 Delhi, a city much less accepting of LGBT persons then visà-vis today. Over the next decade, Petitioner No. 5 worked in
the budding e-commerce sector and achieved great success
in the field of marketing, rising to the post of Business Head.
However, in 2008, the Petitioner No. 5 had no option but to
quit a lucrative corporate career due to the fear of her sexual
orientation being discovered and the adverse consequences
that would have followed. Thus, the Petitioner No. 5 went on
a hiatus of more than a year and a half, during which time
she cared for her mother ailing from cancer and finally
managed to come to terms with her sexual orientation. The
Petitioner No. 5 first hand experienced the social stigma that
attaches to LGBT persons as a result of Section 377 IPC.
The Petitioner No. 5 did not reveal her sexual orientation to
even her mother much less her extended family or friends
until she was already in her mid-thirties and even then only in
the last few months of her mother’s battle with cancer. Even
today, the Petitioner No. 5 is unable to accompany or be
accompanied by her committed partner at social and family
occasions. Presently, the Petitioner No. 5 works as a
consultant in the Food and Beverages industry.
The Respondent
17.The Respondent is the Union of India through the nodal

and concerned Ministry i.e. Ministry of Law & Justice, which
is responsible for promulgation and enforcement of statutes

 and

legal

provisions

in

the

country.

Evidently,

the

Respondent is State within the meaning of Article 12 of the
Constitution.
Challenging Section 377 IPC
18.The Petitioners find their lives inexorably constricted

and their rights infringed by Section 377 of the Indian Penal
Code, 1860. Despite their formidable achievements and
contribution to India, they are denied the right to sexuality,
the most basic and inherent of fundamental rights. Section
377 of the IPC renders them criminals in their own country.
Section 377 IPC does not criminalize only specific acts
whose commission a law-abiding citizen may avoid and steer
clear of. Rather, it criminalizes the very existence of LGBT
persons by criminalizing their sexuality, an attribute which is
as inherent and intrinsic to a person as their race or gender.
Sexuality lies at the core of a human being’s persona. Sexual
expression, in whatever form, between consenting adults in
the privacy of a home ought to receive the protection of
Fundamental Rights. Section 377 of the Indian Penal Code
infringes the Petitioners’ right to sexuality, and also has a
cascading effect of barring the Petitioners from accessing the
unenumerated rights which this Hon’ble Court has held flow
from Article 21 of the Constitution of India.

 19.The ability to be open with one’s friends, family,

colleagues and employees about an integral and intrinsic part
of one’s life and personality, is fundamental to unfold the full
potential of the personality of any human being. The
Petitioners can attest that being open about one’s sexual
orientation, is essential to the pursuit of personal and
professional success and happiness. That even the fields of
medicine and psychology have accepted that homosexuality
is not an abnormality, but that human sexuality has myriad
forms and diverse expressions.
20.The continuance of Section 377 IPC on the statute

books in free and independent India makes it all too clear
that the constitutional guarantees of equality, fraternity,
dignity, life and liberty, which are the basis of the
constitutional contract on which this country was founded,
are not extended to the Petitioners. The fear that
criminalization and coercive state action will follow if a person
expresses a core part of their personality can have an
unmeasurable harmful effect on one’s economic, social, and
political life. The Petitioners are highly accomplished
professionals, entrepreneurs and artists who have been
felicitated for their professional achievements, but can attest
to the deleterious effect of this draconian law on their
personal and professional lives. Their parents, friends,
colleagues and well-wishers fear for the consequences that

 may ensue if the Petitioners are open about their sexual
orientation.
21.The Petitioners have no legal status or protections. The

law recognizes them only as criminals and reduces their love
to a crime.
22.The Petitioners are unable to form professional

associations with other similarly placed persons to voice their
concerns about discrimination which they may face in places
of employment, education, or otherwise. The Petitioners
cannot overcome a lurking fear that their consensual
relationships, even within the privacy of their homes, may
invite coercive state action at the hands of a busybody, rival,
political party, or any other 3rd party who has no bona fide
interest with the private lives of the Petitioners, and is
motivated only by malice/prejudice.
23.It is submitted that the issue in the present case does

not concern only removing an injustice perpetuated by a
colonial law, but also affirming the constitutional vision of a
society based on tolerance and mutual respect. The
Constitution of India does not envisage a heterogeneous
society but rather recognizes, celebrates and protects the
plurality and diversity of Indian society and culture. Article 38
of the Constitution that states the welfare of the people is to
be promoted by securing and protecting the social order such

 that all institutions of national life be informed by justice:
social, economic and political.
24.Criminal

laws

and

pre-constitutional

statutes

in

particular, must be judged on the touchstone of constitutional
and not public morality. Section 377 IPC in particular is a relic
of colonial rule and of 19th century Victorian morality. The
evolution of the law after the coming into force of the
Constitution has meant that acts which were crimes earlier
like suicide and the Criminal Tribes act are not offences now,
and acts which were not crimes earlier like sati, dowry and
bigamy are criminalized.
25.It is respectfully submitted that the judgment in Suresh

Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1
SCC 1 has not considered any of these aspects raised by the
Petitioners in this Writ Petition.
26.Finding that their Fundamental Rights are violated by

this draconian and unjust law, the Petitioners are invoking the
extraordinary writ jurisdiction of this Hon’ble Court under
Article 32 of the Constitution of India, on the following
amongst other:
GROUNDS

 A. For that the impugned Section violates the Fundamental
Rights of the Petitioners under Articles 14, 15, 16, 19 and
21 of the Constitution of India.
B. For that the right to move this Hon’ble Court for the
enforcement of rights conferred by Part III of the
Constitution is guaranteed under Article 32 thereof.

Violation of Article 21   The Right to Sexuality and the Right
to Choice of a Sexual Partner are Fundamental Rights
protected under Article 21 of the Constitution of India
Right to Sexuality, Sexual autonomy and Right to
Choice of a Sexual Partner
C. For that the right to sexuality is the most basic, inherent and
immutable of all natural rights that attain to a person. The
free and natural expression of sexuality without fear of
criminalization forms the cornerstone of dignity and personal
autonomy.
D. For that this Hon’ble Court in NALSA v. Union of India
[(2014) 5 SCC 438] has accorded recognition and the right of
choice to attributes which are an inherent, integral and
immutable part of an individual’s personality and can on the
strength of growing medical and psychiatric knowledge be
rightly regarded as but a natural benign variant of the human
experience.

 E. For that this Hon’ble Court in NALSA v. Union of India
[(2014) 5 SCC 438] has recognized that sex and gender are
primarily

psychological

rather

than

biological

phenomena/attributes. This Hon’ble Court also recognized
sexual orientation as being integral to an individual’s
personality

and

as

the

most

basic

aspect

of

self-

determination, dignity and freedom, and held:
“Sexual orientation includes transgender and gendervariant people with heavy sexual orientation and their
sexual orientation may or may not change during or
after

gender

transmission,

which

also

includes

homosexuals, bisexuals, heterosexuals, asexual, etc.
Gender identity and sexual orientation, as already
indicated, are different concepts. Each person’s selfdefined sexual orientation and gender identity is
integral to their personality and is one of the most basic
aspects of self-determination, dignity and freedom and
no one shall be forced to undergo medical procedures,
including SRS, sterilization or hormonal therapy, as a
requirement for legal recognition of their gender
identity.”
F. For that this Hon’ble Court in NALSA v. Union of India
[(2014) 5 SCC 438] has recognized an individual’s right of
choice vis-à-vis their sex/gender identity which is integral to
their personality. For that sexual autonomy and freedom to

 choose one’s sexual partner is an intrinsic part of the sense
of selfhood of any human being. It is an intimate and
fundamental life decision which can determine a person’s
self-worth and self-respect.
G. For that this Hon’ble Court has recognized that bodily
integrity and the freedom to consent to procreative or nonprocreative sexual activity, are dimensions of personal liberty
as understood under Article 21 of the Constitution of India.
Such personal liberty is guaranteed to every person and
cannot be limited to non-LGBT persons alone.
H. For that freedom of sexuality and consequentially choice of
sexual partner is a key determinant for any person to live a
happy and fulfilling life and is protected under Article 21 of
the Constitution of India.
I. For that Section 377 of the IPC criminalises a core part of a
person’s identity solely on account of his or her sexuality and
thus violates Article 21 of the Constitution. Section 377 IPC
denies LGBT persons their rights to full personhood,
sexuality, sexual autonomy, and choice of sexual partner,
which are implicit in the notion of life under Article 21 of the
Constitution of India. This Hon’ble Court has upheld the right
to choice of conjugal partner under Article 21 of the
Constitution of India

 J. For that this Hon’ble Court has in a number of judgments
recognized the advent of changes in society regarding sexual
and romantic choice and protected adults who seek to
exercise such choice.
K. For that this Hon’ble Court has recognized that the choice of
partner is protected by the freedom of conscience and
expression and that such conjugal choice ought to be free
from police interference. This Hon’ble Court has in fact
strongly condemned invocation of the police machinery to
impede the freedom of conscience as a gross abuse of the
process of law. The criminalization of choice of sexual
partner under Section 377 IPC is prima facie a violation of
the Right to Life under Article 21 of the Constitution of India.
L. For that social norms on the choice of conjugal partner have
evolved with time and the law is not only expected to follow
such societal changes, but also to be a catalyst for social
change.
Recognizing the right to sexuality has a cascading effect
on unenumerated rights guaranteed under Article 21 of
the Constitution
M. For that this Hon’ble Court has held that the right to life
encompasses unenumerated rights including the right to
education, health, privacy and reasonable residence.

 N. For

that

LGBT

persons regularly

suffer harassment,

discrimination, and violence at the hands of both the police
machinery as well as other institutional forms of violence and
discrimination in schools, places of employment or other
public places on account of their sexual orientation and
identity.
O. For that Section 377 IPC renders LGBT persons unable to
take recourse to the criminal justice system, the police, or
public

and

even

judicial

authorities

out

of

fear

of

criminalization. In this manner, by infringing the right to
sexuality, Section 377 IPC has a cascading effect, preventing
LGBT persons from enjoying other Fundamental Rights
guaranteed by the Constitution of India.
P. For that Section 377 by creating a taint of criminality affects
the reputation of LGBT persons. This Hon’ble Court has
recognized reputation as being closely linked to livelihood
and being a facet of the rights guaranteed under Article 21.
Section 377 IPC violates the right to dignity and personal
autonomy
Q. For that the expression “dignity of the individual” finds
specific mention in the Preamble to the Constitution of India.
This Hon’ble Court in Prem Shankar Shukla v. Delhi Admn.
[(1980) 3 SCC 526], observed that the guarantee of human
dignity forms part of our constitutional culture.

 R. This Hon’ble Court in Francis Coralie Mullin v. Administrator,
Union Territory of Delhi and others [(1981) 1 SCC 608] has
held that the right to human dignity is a part of the right to life
under Article 21 COI and any law infringing the same has to
satisfy the requirement of a just, fair and reasonable
procedure established by law which stands the test of other
Fundamental Rights.
S. For that “dignity” is an acknowledgement of the value and
worth of all individuals as members of society, and the
recognition of a person as a free being who develops his or
her body and mind as they see fit. At the root of dignity is the
autonomy of private will and a person's freedom of choice
and action. Human dignity rests on recognition of the
physical and spiritual integrity of the human being, his or her
humanity, and value as a person.
T. For that Section 377 IPC gives legal sanction to the social
and historical stigma suffered by LGBT persons and by
criminalizing conduct most closely associated with them,
conveys a message that in the eyes of the State and the law,
such stigma is acceptable and lawful and that LGBT persons
deserve to be criminalized for an intrinsic, inherent and
immutable attribute.

 U. For that recognition of and respect for the dignity of diverse
forms of human existence lies at the heart of the protection of
the Right to Life under Article 21 of the Constitution of India.
V. For that sexual orientation lies at the core of one’s sense of
being and personality and is an essential aspect of the right
to dignity.
Section 377 violates the right to privacy
W.For that this Hon’ble Court in Kharak Singh v. The State of
U.P., (1964) 1 SCR 332 held the right to privacy expressly is
part of the right to liberty under Article 21, part of the right to
freedom of speech and expression in Article 19(1)(a), and
also of the right of movement in Article 19(1)(d) of the
Constitution.
X. For that this Hon’ble Court in Gobind v. State of M.P., (1975)
2 SCC 148, has observed that, in consideration of a human
being’s spiritual nature, feelings and intellect, the Constituent
Assembly “must be deemed to have conferred upon the
individual as against the Government a sphere where he
should be let alone.”
Y. For that this Hon’ble Court in District Registrar and Collector,
Hyderabad & Anr. v. Canara Bank & Anr., (2005) 1 SCC 496,
held that the right to privacy deals with persons and not
places. Further Lahoti, CJ. referred to Thornburgh v.

 American College of O and G, 476 US 747 (1986), that “the
concept of privacy embodies the moral fact that a person
belongs to himself and not to others nor to society as a
whole” and also referred to (1976) 64 Cal. L. Rev 1447, that
privacy centres round values of repose, sanctuary and
intimate decision. Repose refers to freedom from unwanted
stimuli; sanctuary to protection against intrusive observation;
and intimate decision, to autonomy with respect to the most
personal of life choices.
Z. For that international instruments such as the Universal
Declaration of Human Rights (Article 12) and International
Covenant on Civil and Political Rights (Article 17) explicitly
recognize the right of a person to be free from arbitrary and
unlawful interference with his or her privacy.
AA.For that in Gobind v. State of M.P. [(1975) 2 SCC 148] this
Hon’ble Court has explicitly recognized that the right to
privacy encompasses the personal intimacies of the home.
This Court has elucidated the basis for protecting the privacy
of home, namely, ‘that activities in the home harm others only
to the extent that they cause offence resulting from the mere
thought that individuals might be engaging in such activities
and that such “harm” is not constitutionally protectible by the
State’ and that home is a ‘place of sanctuary’ where people
are free from societal controls.

 BB.For that Section 377 unreasonably and unjustly infringes
upon the right of privacy, both zonal and decisional. The
State ought not to enter the bedrooms of consenting adults
and such unwarranted and unnecessary intrusion on conduct
that

causes

no

harm,

prima

facie

amounts

to

an

unconstitutional infringement of the Right to Privacy.
Section 377 violates the Right to Health
CC.For that this Hon’ble Court in interpreting Article 21 in light of
Article 12 of the International Covenant on Economic, Social
and Cultural Rights held that the right to health inheres in the
right to life under Article 21. [Paschim Banga Khet Mazdoor
Samity v. State of W.B., (1996) 4 SCC 37].
DD.For that Article 12 of the ICESCR makes it obligatory on the
“State to fulfil everyone's right to the highest attainable
standard of health.” General Comment No. 14 (2000) [E/C.
12/2000/4; 11 August 2000] on Article 12 of the ICESCR
recognizes right to health as encompassing both freedoms
and entitlements. The freedoms include the right to control
one's health and body, including sexual reproductive
freedom, and the right to be free from interference, such as
the right to be free from torture, non-consensual medical
treatment and experimentation. The entitlements include
equal treatment, and non-discrimination in terms of access to

 health care and the underlying determinants of health based
on inter alia sexual orientation.
EE.For that the impugned provision violates the right to health of
LGBT persons as it renders them unable to access health
services which require them to reveal their sexual orientation
out of fear of prosecution, particularly as hospitals are
required to intimate the local police about the possible
commission of any offence and to prepare a Medico-Legal
Certificate in such cases.
FF.For that the Ministry of Health, Government of India had
admitted before the Hon’ble Delhi High Court in W.P. (C) No.
7455/2001 that Section 377 interferes with HIV/AIDS
prevention efforts and even with the dissemination of
information about HIV/AIDS amongst high risk groups.
Section 377 infringes Art. 21 for being vague and
excessive
GG.For that Section 377 IPC infringes Article 21 inasmuch as it
is vaguely defined and overbroad in its scope.
HH.For that Section 377 IPC, in penalising “carnal intercourse
against the order of nature” does not give adequate notice to
a reasonable degree of certainty of prohibited conduct to a
person of normal understanding.

 II. For that Section 377 IPC is overbroad inasmuch as it extends
to prohibiting of acts which are otherwise protected as
Fundamental Rights under the Constitution. Thus, Section
377 forces LGBT persons to choose between either breaking
the law or living a life without love or companionship, and
being untrue to their natural selves.

Violation of Article 14   The State has a positive obligation to

create an equal and just society under Article 14 of the
Constitution
JJ.For that Article 14 of the Constitution enjoins upon the State
not only to protect against inequality but also entails a
positive obligation to create just, fair and equal society that
ensures equality of status and opportunity to all citizens who
can all enjoy fundamental rights guaranteed under Part III of
the Constitution.
KK.For that the guarantee of equality of opportunity to unfold the
full potential of an individual’s personality is an enduring
value of our polity.
LL.For that this Honorable Court has recognized that social
inequality is accentuated and perpetuated by legal inequality.
MM.For that justice, liberty, equality and fraternity are supreme
constitutional values to establish an egalitarian social,
economic and political democracy.

 NN.For that social justice consists of the diverse principles
essential for the growth and development of the personality
of every citizen.
Law cannot render sexual minorities as invisible
OO.For that sexual minorities are rendered invisible by the law
inasmuch as the law denies them the right to identify
themselves based on characteristics that differ from the
majoritarian norm.
PP.For that the State has an obligation to protect the
fundamental rights of permanent and invisible minorities, like
the Petitioners.
QQ.For that exclusion by criminalization, silence and omission is
as effective in law as exclusion by express language.

Section 377 is a hostile class legislation
RR.For that Section 377 targets LGBT persons as a class.
Although the impugned provision appears to criminalize acts
and not identities, in fact, it targets LGBT persons for an
inherent and immutable attribute of their personalities. It
criminalizes conduct which in the eyes of the public is
associated only with LGBT persons.
SS.For that by virtue of Section 377, the State legalizes social
stigma and discrimination against such persons and does

 great disservice and dishonour to the contribution of LGBT
persons, including the Petitioners, to the economic, political,
cultural and social life of the country. Section 377 is a hostile
legislation.
TT.For that equality before law is designed to protect all persons
against legislative discrimination amongst equals and to
prevent any person or class of persons from being singled
out as a special subject for discriminating and hostile
legislation.
UU.For that Section 377 criminalizes the whole of the class
resulting in substantial and adverse infringement of their legal
and fundamental rights denies the entire class of LGBT
persons equality before law and the equal protection of laws.

Section 377 is inherently arbitrary and unreasonable, and
promotes unreasonable and arbitrary state action
VV.For that the criminalization of a section of society merely on
the grounds of their sexual orientation is inherently arbitrary
and unreasonable.
WW.For that Section 377 exposes LGBT persons to harassment
and abuse at the hands of the executive/law enforcement
agencies based purely on their sexual orientation and
irrespective of their engaging in “carnal intercourse against
the order of nature.”

 XX.For that this Hon’ble Court in NALSA v. Union of India
[(2014) 5 SCC 438] noted that even though Section 377 IPC
was associated with specific sexual acts, it highlighted
certain identities and exposed them to harassment and
abuse. [para 19]
YY.For that the enforcement of public or majoritarian morality
against a minority violates the rule of law which is an integral
facet of Article 14 of the Constitution of India.
ZZ.For that this Hon’ble Court in NALSA v. Union of India
[(2014) 5 SCC 438] observed that it was a moral failure on
the part of the society where it was not willing to recognize
differences which are in fact merely natural benign variations
of the human experience. [paras 1 & 118]
AAA.For that the historical misuse and abuse of Section 377
IPC has been acknowledged by this Hon’ble Court in NALSA
v. Union of India [(2014) 5 SCC 438] in the context of
transgender persons.
BBB.For that numerous accounts and affidavits by LGBT
persons attest to torture, harassment and discrimination at
the hands of state agencies including the police on account
of Section 377 IPC.
CCC.For that equality under the Indian Constitution goes
beyond preventing discrimination to recognizing the historical
discrimination suffered by social groups because of their

 characteristics

and

taking

steps

to

remedy

such

discrimination.
The criminalization of LGBT persons under Section 377
fails to meet the test of reasonable classification   Section
377 has no constitutionally valid objective
DDD.For that Section 377 has no discernible objective other
than the stigmatization of, and discrimination against LGBT
persons.
EEE.For that this Hon’ble Court has held that if there is nothing
on the face of the law or the surrounding circumstances to
justify the basis of the classification, then it cannot be
presumed there is some undisclosed or unknown reason for
a hostile or discriminating law. Rather, the law would be liable
to be struck down.
FFF.For that Section 377 serves no constitutionally valid
objective or legitimate state interest whatsoever.
GGG.For that even a pre-constitutional law must have a
demonstrable constitutionally valid objective to be upheld
after the coming into force of the Constitution.
HHH.For that to withstand the test of Article 14 the objective of a
statute must be in tune with constitutional morality and not an
assumed public or majoritarian morality.

 III. For that this Hon’ble Court has held in Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra, [(2009) 6
SCC 498] that the role of this Hon’ble Court mandates taking
a perspective on individual rights at a higher pedestal than
majoritarian aspirations and to that extent the Court plays a
counter-majoritarian role. Public opinion may run counter to
the rule of law and constitutionalism.
JJJ.For that after the coming into force of the Protection of
Children

from

Sexual

Offences

Act,

2013

and

the

amendment of Sections 375 – 376E of the Indian Penal
Code, 1860 vide the Criminal Law (Amendment) Act, 2013;
Section 377 IPC is not required on the statute books for
either the criminalization of child sexual abuse nor for sexual
offences other than penile rape for which it may have been
invoked prior to these Acts.
There is no intelligible differentia between LGBT persons
and non-LGBT persons
KKK. For that Section 377 violates Article 14 insofar as the
classification thereunder is arbitrary and unreasonable
inasmuch as it seeks to criminalize a section of society based
merely on its personal or social characteristics.
LLL.For that even otherwise, there is no constitutionally valid,
intelligible differentia between LGBT and non-LGBT persons.

 MMM.For that the only ostensible ground to differentiate
between LGBT and non-LGBT persons is on the basis of the
sex of their sexual partner. Such a class created only on the
grounds of sex prima facie runs afoul of Article 15 of the
Constitution of India.
NNN.For that Article 15 expressly prohibits discrimination
against citizens only on the basis of sex.
OOO.For that to be valid under Article 14, a classification must
also be valid under Article 15 inasmuch as Articles 14, 15
and 16 together form the equality code under the
Constitution, wherein Article 14 is the genus and Article 15 is
the specie.
PPP.For that Section 377 is as unconstitutional as any other law
that would seek to criminalize sexual conduct between
persons based only on the religion, caste, race, or place of
birth of a sexual partner.

Section 377 fails to meet the rational nexus test
QQQ.For that there can be no rational nexus if both the grounds
of

classification

and

unconstitutional.

Violation of Article 15

the

objective

of

the

Act

are

 RRR.For that Section 377 discriminates against citizens only on
the grounds of sex of their sexual partner and hence violates
Article 15 of the Constitution of India.
SSS.For that ‘sex’ under Article 15 of the Constitution includes
‘sexual orientation’; and hence the prohibition against
discrimination on the grounds of sex under Article 15(1)
includes the prohibition of discrimination on the grounds of
sexual orientation.
TTT.For that sexual orientation is as inherent and immutable a
characteristic as the other grounds of non-discrimination
which are expressly laid down in Article 15(1).
UUU.For that Articles 14, 15 and 16 together form the equality
code under the Constitution, wherein Article 14 is the genus
and Article 15 is the specie.
VVV.For that this Hon'ble Court ought to interpret the
Constitution in a manner which would enable citizens to
enjoy rights guaranteed by it in the fullest measure, and not
interpret rights so as to whittle them down.

Violation of Article 19
WWW.For that Article 19(1)(a) protects the right of freedom of
speech and expression of all citizens, including the
expression of sexual orientation.

 XXX.For that Section 377 has a chilling effect on a person’s
ability to be open and speak freely about his or her sexual
orientation, and to create artistic or literary works that capture
the experiences of LGBT persons, which is an infringement
of the freedom of speech and expression.
YYY.For that Section 377 infringes the Petitioners’ right to form
professional, social and other associations that are the norm
for all other communities and that are essential for a sense of
social, financial, psychological and political well-being.

Violation of Article 16
ZZZ.For that Article 16(1) of the Constitution of India grants to
every citizen, equality of opportunity in matters relating to
employment or appointment to any office under the State.
AAAA.For that this Hon’ble Court has described public
employment opportunity as a natural wealth in which all
citizens are entitled to an equal share.
BBBB.For that Section 377 IPC effectively prevents LGBT
persons from seeking employment and appointment under
the State, and thereby infringes their Fundamental Rights
under Article 16 of the Constitution.
CCCC.For that this Hon’ble Court had noted in Supreme Court
Advocates On Record Association & Anr. v. Union of India

 [Order dated 16.10.2015 in W.P. (C) No. 13/2015] the extent
to which Section 377 IPC had exposed LGBT persons to
stigmatization. Insofar as this Hon’ble Court observed that in
the present times it was unlikely that the Respondent would
appoint any LGBT person as a judge of this Hon’ble Court or
any of the High Courts.
DDDD.For that, moreover, Section 377 IPC by criminalising
conduct that is a core part of the identity and existence of
LGBT persons creates an imminent threat of exposing them
to automatic suspension from service and disciplinary
proceedings.
EEEE.For that the All India Services (Discipline and Appeal)
Rules, 1969 [Rule 3] and the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 [Rule 10]
provide for automatic suspension from service upon a public
servant’s being detained in official custody for more than 48
hours on a criminal charge or on conviction. Moreover, even
where a public servant is not arrested and is being merely
investigated, he may be suspended at the discretion of the
Government if the offence involves “moral turpitude.”
FFFF.For that Section 377 IPC is a non-bailable offence
punishable with imprisonment for life or with imprisonment of
either description for a term which may extend to 10 years
and shall also be liable to fine.

 GGGG.For that as a result of Section 377 IPC, LGBT persons
are discriminated against in matters relating to employment
and appointment under the State based solely on the gender
of their sexual partner, which is a prohibited ground for
discrimination under Article 16(2) of the Constitution of India.
HHHH.For that Article 14, 15 and 16 form part of the equality
code under the Constitution wherein Article 14 is the genus
and Article 16 is the specie.

Pre-constitutional
constitutionality

laws

carry

no

presumption

of

IIII.For that there is no presumption of constitutionality of preConstitutional statutes, rather, a pre-Constitutional statute
becomes amenable to the test of fundamental rights upon the
coming into force of the Constitution.

Principle of updating construction
JJJJ.For that this Hon’ble Court may take into consideration the
legislative history of an impugned statute or provision for the
purposes of determining the constitutionality of an impugned
statute. In the cases where the impugned statute or provision
is based on a colonial statute and said colonial statute has
been repealed, this Hon’ble Court has considered the same

 as sufficient cause for striking down the impugned Indian
legislation.
KKKK.For that the Constitution is a living document and its
ongoing interpretation accounts for the social changes in the
national polity, and should not be restricted to the state of law
at the time of commencement of the Constitution.
LLLL.For that the Constitution is not an ephemeral legal
document embodying a set of legal rules for the passing
hour. It sets out principles for an expanding future and is
intended to endure for ages to come and therefore a
purposive rather than a strict literal approach should be
adopted in its interpretation. A constitutional provision must
be construed in a wide and liberal manner so as to take
account of changing conditions and purposes so that it does
not get fossilized but rather endures.
MMMM.For that same-sex relations have been accepted and
the bar of criminality lifted in South Africa, Nepal, Fiji, Mexico,
China, Nepal, Hong Kong, Japan, Turkey, South Korea,
Thailand, Vietnam, the UK and the USA.
NNNN.For that Constitutional courts must keep in mind their
own experience, international treaties and covenants, and
the doctrine of flexibility.

 Judicial review and the duty of this Court to protect
Fundamental Rights
OOOO.For that judicial review is part of the basic structure of
the

Constitution

of

India;

and

the

question

of

the

constitutionality of Section 377 IPC cannot be left to
Parliament to decide.
PPPP.For that in adjudicating the constitutional validity of
statutes, this Hon'ble Court determines whether the laws
made by the Legislature are in conformity with the provisions
of the Constitution.
QQQQ.For that the role of the judiciary is the protection of
fundamental rights which is essential to promote a just and
tolerant society.
RRRR.For that the purpose of Part III of the Constitution is to
withdrawn certain subjects from the area of political
controversy and to place them beyond the reach of
majorities.

Article 32
SSSS.For that the right to approach this Hon’ble Court seeking
redress for violation of fundamental rights is in itself a
fundamental right protected by the Constitution of India.

 TTTT.For that Article 32 enables persons to approach this
Hon’ble Court even in the case of a threatened violation of
Fundamental Rights and they need not await the actual
deprivation of their life or liberty, particularly in the case of
criminal statute.
UUUU.For that Dr. Ambedkar while addressing the Constituent
Assembly said of Article 32 of the Constitution that - “If I was
asked to name any particular article in this Constitution as
the most important – an article without which the Constitution
would be a nullity - I could not refer to any other article
except this one. It is the very soul of the Constitution and the
heart of it.”

International covenants
VVVV.Article 7 of the Universal Declaration of Human Rights
lays down the principle of equality and bars discrimination.
Article 12 of the UDHR recognizes the right of a person to be
free from arbitrary and unlawful interference vis-à-vis his
privacy, home and reputation among others.
WWWW.Article 9 of the International Covenant on Civil &
Political Rights recognizes the right to liberty and security of
every person. Article 17 of the ICCPR is in pari material to
Article 12 of the UDHR and recognizes the right of a person
to be free from arbitrary and unlawful interference vis-à-vis

 his privacy, home and reputation among others. Article 19 of
the ICCPR recognizes the right of every person to the
freedom of expression.
XXXX.For that this Hon’ble Court has held that international
conventions insofar as they are not inconsistent with the
fundamental rights and are in harmony with its spirit, may be
relied upon to promote the object of the constitutional
guarantee.

YYYY.For that the Yogyakarta Principles on the Application of
Human Rights Law in Relation to Sexual Orientation and
Gender Identity (Yogyakarta Principles) were adopted in
2007 as a coherent and comprehensive identification of the
obligation of States to respect, protect and fulfil the human
rights of all persons regardless of their sexual orientation or
gender identity by a group of twenty-five internationally
renowned jurists which included one former UN High
Commissioner for Human Rights, 13 current or former UN
Human Rights Special Mechanism Office Holders or Treaty
Body Members, two serving Judges on domestic courts and
a number of academics and activists.

ZZZZ.For that this Hon’ble Court has already recognized
Yogyakarta Principles and held that they must be recognized

 and followed to the extent that they are not inconsistent with
Part III of the Constitution.
27.The Petitioners have not filed any other petition either

before this Hon’ble Court or any other High Court challenging
the constitutional validity of Section 377 IPC.
28.Any other ground which this Hon’ble Court may allow

the Petitioners to plead at the time of arguments.
29.The present Petition is filed bona fide and in the

interests of justice.
PRAYER
In light of the above mentioned facts and circumstances, it is
prayed that that this Hon’ble Court may be pleased to pass:
A. Writ of mandamus declaring the “Right to Sexuality,” “Right to
Sexual Autonomy” and the “Right to Choice of a Sexual
Partner” to be part of the Right to Life guaranteed under
Article 21 of the Constitution of India; and
B. Writ of mandamus declaring Section 377 of the Indian Penal
Code, 1860 to be unconstitutional; and/or
C. Writ of mandamus declaring that to Section 377 IPC does not
apply to consensual sexual acts of adults in private; and/or

 D. And pass any other order this honorable court may deem fit
and unnecessary in the interests of justice.

DRAWN BY:
Ms. Arundhati Katju, Advocate and
Mr. Himanshu Suman, Advocate

FILED BY

(E.C. AGRAWALA)
ADVOCATE FOR THE PETITIONERS
NEW DELHI
DRAWN ON: 30.3.2016
FILED ON: 27.4.2016

 LIST OF DATES
06.12.2001

Naz Foundation v. Govt. of NCT of Delhi & Ors.
[W.P. (C) No. 7455/2001] was filed and registered
before the Delhi High Court. The said petition, inter
alia, challenged the constitutionality of Section 377
IPC.

02.09.2004

A Division Bench of the Delhi High Court dismissed
Naz Foundation v. Govt. of NCT of Delhi & Ors.
[W.P. (C) No. 7455/2001] on the ground of
maintainability.

03.11.2004

Review Petition No. 384/2004 against the order
dated 02.09.2004 was dismissed by the Delhi High
Court.

03.02.2006

This Hon’ble Court set aside the order of dismissal
and remanded the matter i.e. Naz Foundation v.
Govt. of NCT of Delhi & Ors. [Civil Appeal No.
952/2006] back to the Delhi High Court for
reconsideration.

02.07.2009

Delhi High Court allowed Naz Foundation v. Govt. of
NCT of Delhi & Ors. [W.P. (C) No. 7455/2001] by
declaring that Section 377 of the Indian Penal Code,
1860 is violative of Articles 14, 15 and 21 of the

 Constitution insofar as it criminalizes consensual
sexual acts of adults in private.
09.07.2009

This Hon’ble Court issued notice on a petition being
Suresh Kumar Koushal & Anr. v. Naz Foundation &
Ors. [SLP (C) CC No. 9255/2009], which challenged
the judgment of the Delhi High Court dated
02.07.2009 passed in the case of Naz Foundation.

11.12.2013

Vide judgment dated 11.12.2013, this Hon’ble Court
allowed the appeal in the case of Suresh Kumar
Koushal & Anr. v. Naz Foundation & Ors. [Civil
Appeal No. 10972/2013] and held that Section 377 of
the Indian Penal Code, 1860 does not suffer from the
vice of unconstitutionality.

28.01.2014

This Hon’ble Court dismissed the review petition filed
by Naz Foundation being Review Petition (C) No. 4155/2014 titled as Naz Foundation (India) Trust v.
Suresh Kumar Koushal & Ors. challenging the order
of this Hon’ble Court dated 11.12.2013.

22.04.2014

Pursuant to the dismissal of the Review Petition, Naz
Foundation filed a Curative Petition being Curative
Petition (Civil) No. 88-102/2014 titled as Naz
Foundation Trust v. Suresh Kumar Koushal & Anr,
impugning

the

judgment

and

order[s]

dated

 11.12.2013 and 28.01.2014. Vide order dated
22.04.2014, this Hon’ble Court directed that the
Curative Petition[s] be listed before the Court.
02.02.2016

Vide order dated 02.02.2016, this Hon’ble Court
directed that Curative Petition (Civil) No. 88119/2014 titled as Naz Foundation Trust v. Suresh
Kumar Koushal & Anr., may be placed before a
Constitution Bench of this Hon’ble Court as the
issues involved are of considerable importance and
public interest, and some of the issues have
constitutional dimensions.

27.04.2016

The present petition under Article 32 of the
Constitution

of

India

is

filed

challenging

the

constitutional validity of Section 377 IPC, by certain
lesbian, gay and bisexual citizens of the country,
whose fundamental rights have been jeopardized by
the said provision. It is pertinent to mention that each
of

the

Petitioners

are

well-accomplished

and

respected citizens, who have made a mark for
themselves in professional pursuits.

 INDEX
SL.NO.

PARTICULARS

PAGES

1.

Listing Proforma

A – A1

2.

Synopsis and List of Dates

B–G

3.

Civil Writ Petition with affidavit

1 – 49

4.

Appendix-1 Section 377 of the Indian
Penal Code, 1860.

50

5.

Appendix-2 Article 21 of the Constitution of
India.

51

6.

‘ANNEXURE P-1’: A copy of the
judgment dated 02.07.2009 passed by the
Delhi High Court in the case of Naz
Foundation v. Govt. of NCT of Delhi &
Ors. reported in 2009 (111) DRJ 1.

52 – 109

7.

‘ANNEXURE P-2’: A copy of the
judgment dated 11.12.2013 passed by
this Hon’ble Court in the case of Suresh
Kumar Koushal & Anr. v. Naz Foundation
& Ors. reported in (2014) 1 SCC 1.

110 – 190

8.

‘ANNEXURE P-3’: A copy of the order
dated 28.01.2014 passed by this Hon’ble
Court in Review Petition (C) No. 4155/2014 reported in (2014) 3 SCC 220.

191 – 192

9.

‘ANNEXURE P-4’: A copy of the orderdated 22.04.2014 passed by this Hon’ble
Court in Curative Petition (C) No. 88-102
of 2014 in Review Petition (C) No. 41-55
of 2014 in Civil Appeal No. 10972 of 2013
and other connected matters.

193 – 194

10.

‘ANNEXURE P-5’: A copy of the order
dated 02.02.2016 passed in the case of
Naz Foundation Trust v. Suresh Kumar
Koushal & Anr being Curative Petition
(Civil) No. 88-119/2014.

195 – 200

11.

ANNEXURE P-6: True typed copy of the
Sangeet Natak Akademi Award presented
to Petitioner No. 1 in 2014 alongiwht
photocopy of its original.

201 – 202

12.

ANNEXURE P-7: True typed sample copy
of the article written about Petitioner No.1
Sh. Navtej Singh Johar and his body of
work dated Nil.

203 – 204

 13.

ANNEXURE P-8: True typed copy of
article written by Petitioner No.1 Sh.
Navtej Singh Johar dated Nil.

205 – 216

14.

ANNEXURE
P-9:
Performance
photograph of Petitioner No.1 Sh. Navtej
Singh Johar.o as

217

15.

ANNEXURE P-10: True typed sample
copy of the article authored by Petitioner
No.2 Sh. Sunil Mehra dated 26.10.2015.

218 – 220

16.

ANNEXURE P-11: A copy of the brief
description of the books authored by
Petitioner No.2 Sh. Sunil Mehra dated Nil.

221 – 222

17.

ANNEXURE P-12: True typed sample
copy of the article authored by Petitioner
No.3 Ritu Dalmia dated Nil.

223 – 226

18.

ANNEXURE P-13: A copy of the brief
description of the books authored by
Petitioner No.3 Ritu Dalmia dated Nil.

227 – 230

19.

ANNEXURE P-14: True copy of the
certificate awarded to Petitioner No.3 Ritu
Dalmia and her restaurants dated
12.6.2014.

231 – 238

20.

ANNEXURE P-15: True typed sample
copy of the article written about Petitioner
No.4 Sh. Aman Nath and his body of work
dated Nil.

239 – 241

21.

ANNEXURE P-16: True typed sample
copy of the article authored by Petitioner
No. 4 Sh. Aman Nath.

242 – 244

22.

ANNEXURE P-17: A true copy of the
certificates awarded to Petitioner No.4 Sh.
Aman Nath alongwith typed copy.

245 – 249

23.

ANNEXURE P-18: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “A Dome over India
Rashtrapati Bhavan: Rashtrapati Bhavan”
dated Nil.

250 – 252

24.

ANNEXURE P-19: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Rajasthan: The Painted
Walls of Shekhavati” dated Nil.

253 – 254

25.

ANNEXURE P-20: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Arts and Crafts of
Rajasthan” dated Nil.

255 – 256

 26.

ANNEXURE P-21: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Gota” dated Nil.

257 – 258

27.

ANNEXURE P-22: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Jaipur: The Last
Destination” dated Nil.

259 – 260

28.

ANNEXURE P-23: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Jodhpur’s Umaid
Bhawan: The Maharaja of Palaces” dated
Nil.

261 – 263

29.

ANNEXURE P-24: A true typed copy of
book authored by Petitioner No.4 Sh.
Aman Nath titled “Rajasthan: the painted
walls of Shekhavati” dated Nil.

264 – 265

30.

Crl. M.P. No. ____ of 2016: Application
for exemption from filing official translation
with affidavit.

266 – 268

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Crl. M.P. No. _________ of 2016
IN
WRIT PETITION (CRIMINAL) NO. __________ OF 2016

IN THE MATTER OF:-

Navtej Singh Johar & Ors.

.... Petitioners

Versus
Union of India

.... Respondent

AN APPLICATION FOR EXEMPTION FROM FILING OFFICIAL
TRANSLATION
TO,
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIONERS ABOVE NAMED:
MOST RESPECTFULLY SHOWETH:
1. The Petitioner is filing the accompanying Writ Petition under

Article 32 of the Constitution of India challenging the
constitutional validity of Section 377 IPC. The Petitioners
have not filed any other petition either before this Hon’ble
Court or any other High Court challenging the constitutional
validity of Section 377 IPC.
2. The Petitioners pray that the averments made in the Writ
Petition may be read as part and parcel of this application and
the Petitioners crave leave of this Hon’ble Court to refer to and

 to rely upon the averments made in the Writ Petition which has
not been reproduced herein for the sake of brevity.
3. The Petitioners respectfully submit that the Annexure P-6,
which were originally in Hindi and had been translated by the
local counsel and the Petitioners is therefore praying for the
exemption from filing official translation of the Annexures P-6.
PRAYER
It is, therefore, most respectfully prayed that your Lordships
may graciously be pleased to: a) Exempt the Petitioners from filing official translation of
Annexure P-6;
b) pass such further order/orders, as this Hon’ble Court may deem
fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONERS IS AS
DUTY BOUND, SHALL EVER PRAY.
FILED BY:

(E.C. AGRAWALA)
ADVOCATE FOR THE PETITIONERS
Filed on: 27.4.2016
New Delhi

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. __________ OF 2016
(Under Article 32 of the Constitution of India)
IN THE MATTER OF: -

Navtej Singh Johar & Ors.

… Petitioners

Versus
Union of India

… Respondent

WITH
I.A. NO. _________ OF 2016
APPLICATION FOR EXEMPTION FROM FILING OFFICIAL
TRANSLATION

PAPER – BOOK
[FOR INDEX KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONERS : E.C. AGRAWALA

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRL. M.P. NO. ______ OF 2016
IN
WRIT PETITION (CRIMINAL) NO. 76 OF 2016
(Under Article 32 of the Constitution of India)
IN THE MATTER OF: -

Navtej Singh Johar & Ors.

… Petitioners

Versus
Union of India

… Respondent

APPLICATION FOR PERMISSION TO FILE ADDITIONAL
DOCUMENTS

VOLUME-II
[PAGES 1 TO 255]

PAPER – BOOK
[FOR INDEX KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONERS : E.C. AGRAWALA

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRL. M.P. NO. ______ OF 2016
IN
WRIT PETITION (CRIMINAL) NO. 76 OF 2016
(Under Article 32 of the Constitution of India)
IN THE MATTER OF: -

Navtej Singh Johar & Ors.

… Petitioners

Versus
Union of India

… Respondent

APPLICATION FOR PERMISSION TO FILE ADDITIONAL
DOCUMENTS

VOLUME-III
[PAGES 256 TO 429]

PAPER – BOOK
[FOR INDEX KINDLY SEE INSIDE]

ADVOCATE FOR THE PETITIONERS : E.C. AGRAWALA

 INDEX
(Volume-II)
SL.NO.

PARTICULARS

PAGES

1.

Application on behalf of the Petitioners for
permission to file additional documents with
affidavit.

1–4

2.

True typed copy of the various articles
written about Petitioner No.1 Sh. Navtej
Singh Johar and his body of work

5 – 96

3.

True typed copy of the various articles
authored by Petitioner No.2 Sh. Sunil
Mehra

97 – 181

4.

True typed copy of the various articles
authored by Petitioner No.3 Ritu Dalmia

182 – 255

(Volume-III to be contd…..)

 INDEX
(Volume-III)
SL.NO.

PARTICULARS

PAGES

5.

True typed copy of the various articles
authored by Petitioner No. 4 Sh. Aman
Nath and his body of work

256 – 343

6.

True typed copy of the various articles
authored by Petitioner No. 4 Sh. Aman
Nath

344 – 429

 IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
Crl. M.P. No. _________ of 2016
IN
WRIT PETITION (CRIMINAL) NO. 76 OF 2016

IN THE MATTER OF:-

Navtej Singh Johar & Ors.

.... Petitioners

Versus
Union of India

.... Respondent

AN APPLICATION FOR PERMISSION TO FILE ADDITIONAL
DOCUMENTS
TO,
THE HON’BLE CHIEF JUSTICE AND
HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE
PETITIONERS ABOVE NAMED:
MOST RESPECTFULLY SHOWETH:
1. The Petitioner has filed the abovesaid Writ Petition under Article

32 of the Constitution of India challenging the constitutional
validity of Section 377 IPC. The Petitioners have not filed any
other petition either before this Hon’ble Court or any other High
Court challenging the constitutional validity of Section 377 IPC.
2. The Petitioners pray that the averments made in the Writ
Petition may be read as part and parcel of this application and
the Petitioners crave leave of this Hon’ble Court to refer to and
to rely upon the averments made in the Writ Petition which has
not been reproduced herein for the sake of brevity.

 3. The Petitioners are placing on record the following documents:(i)
(ii)
(iii)
(iv)
(v)

True typed copy of the various articles written about
Petitioner No.1 Sh. Navtej Singh Johar and his body of
work.
True typed copy of the various articles authored by
Petitioner No.2 Sh. Sunil Mehra.
True typed copy of the various articles authored by
Petitioner No.3 Ritu Dalmia.
True typed copy of the various articles authored by
Petitioner No. 4 Sh. Aman Nath and his body of work.
True typed copy of the various articles authored by
Petitioner No. 4 Sh. Aman Nath.

It is submitted that the said documents are necessary for
proper adjudication of the present matter. It is submitted that
the Petitioner herein seeks leave of this Hon’ble Court to
place the said documents on record.
4.

That the balance of convenience lies in the favour of the
Petitioner and in the interest of justice, equity and good
conscience the prayer may be granted.

5.

The present application is being filed boanfide and in the
interest of justice.

PRAYER
It is therefore most respectfully prayed that this Hon’ble Court
may graciously be pleased to
i)

permit the Petitioner to file additional documents in the
present matter as Volume-III and IV; and

ii)

Pass such other or further orders as this Hon'ble Court may
deem fit, just and proper in the facts and circumstances of
the case.

 FILED BY

(E. C. AGRAWALA)
ADVOCATE FOR THE PETITIONER
Filed on:
New Delhi