Section 377: SC refers plea for decriminalising gay sex to a larger Bench

The Supreme Court on Monday referred to a larger Bench a plea seeking decriminalisation of gay sex between two consenting adults.

A Bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the issue arising out of section 377 of the Indian Penal Code (IPC) required to be debated upon by a larger Bench.

Section 377 of the IPC refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay a fine.

The Bench was hearing a fresh plea filed by one Navtej Singh Johar seeking to declare section 377 as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex.

Senior advocate Arvind Datar, appearing for Johar, said the penal provision was unconstitutional as it also provided prosecution and sentencing of consenting adults who are indulging in such sex.

"You can't put in jail two adults who are involved in consenting unnatural sex," Datar said and referred to a recent nine-judge Bench judgement in the privacy matter to highlight the point that the right to choose a sexual partner was part of the fundamental rights.

He also referred to the 2009 Delhi High Court judgement delivered on a plea of NGO 'Naz Foundation' in which the provision was held unconstitutional.

Subsequently, the apex court in 2014 had set aside the high court judgement and termed the provision as constitutional.

After the dismissal of the review plea against the 2014 judgement, a curative plea was filed which was referred to a larger Bench.

The fresh plea of Johar and others will now also be heard by the larger Bench.