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Section 377's days numbered? SC to re-examine verdict criminalising gay sex

A Bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud decided to re-consider the top court's December 12, 2013, order

IANS  |  New Delhi 

Gay, LGBTQ
Representative image. Photo: wikimedia.org

The on Monday said it will re-examine its 2013 verdict upholding the Indian Penal Code's criminalising gay sex as it observed that "a section of people or individuals who exercise their choice should never remain in a state of fear". 

A Bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud decided to re-consider the top court's December 12, 2013, order saying that "individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution".

"The morality that public perceives, the Constitution may not conceive of," the court said making it clear that the "consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected".
 


Referring the matter to a larger Bench, Chief Justice Misra, in his order, said: "The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place", referring to the phrase in which says, "Carnal intercourse against the order of nature".

Stating that understanding of "natural" is not constant, the court said: "What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution."

Saying that a person should not live in fear for making personal choices, the court cautioned: "When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society."

It said that the "litmus test" of law being valid is that the "law must have the acceptability of the Constitutional parameters".

The court order came on a petition by Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others holding that was "violative of under Article Article 21 (right to life)".

By its 2013 order, the had earlier set aside the Delhi High Court's July 2, 2009, verdict decriminalising gay sex.

Johar, Dalmia, and others have sought the declaration that Section 377 was unconstitutional since it infringes Article 21 encompasses the right to sexuality, sexual autonomy, and choice of sexual partner.

The top court had on February 2, 2016, referred to a five-judge Constitution Bench the curative petition by NGO Naz Foundation seeking a relook at its 2013 verdict upholding the validity of Section 377.

The action followed the Bench of Chief Justice T S Thakur, Justice Anil R Dave and Justice Jagdish Singh Khehar (all now retired) being told that the issue involved the constitutional question of far-reaching importance and must be heard by a five-judge Bench.

The Naz Foundation had moved the curative petition seeking a relook at its December 12, 2013, judgment and subsequent January 28, 2014, order in a review petition upholding Section 377.  

First Published: Tue, January 09 2018. 08:34 IST
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