The Supreme Court on Monday agreed to reconsider its 2013 verdict criminalising gay sex and referred to a larger Bench the plea challenging the colonial penal provision, observing societal morality “changes from age to age”.
The apex court also said that a “section of people or individuals who exercise their choice should never remain in a state of fear”.
Noting that the curative petition against its 2013 judgment is pending before a five-judge Constitution Bench, the apex court said the present petition would also be heard by the same Bench, and that a finality could be attained whether gay sex between two consenting adults can be decriminalised.
As many as 26 nations — Australia, Malta, Germany, Finland, Colombia, Ireland, United States, Greenland, Scotland, Luxembourg, England and Wales, Brazil, France, New Zealand, Uruguay, Denmark, Argentina, Portugal, Iceland, Sweden, Norway, South Africa, Spain, Canada, Belgium, Netherlands — have decriminalised gay sex.
The apex court, in its 2013 judgment, had said that “minuscule fraction of the country’s population constitutes lesbian, gay, bisexual and transgender (LGBT) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular...” It had overturned the Delhi High Court verdict, decriminalising gay sex among consenting adults.
Legal experts like Rajiv Dhawan, Colin Gonsalves, Anand Grover, Dushyant Dave and Kamini Jaiswal welcomed the order.
They said the matter was of utmost social and legal significance and a positive move has been initiated by the apex court for a re-look into the earlier judgment which, according to them, required reconsideration.
A Bench comprising Chief Justice Dipak Misra and judges A M Khanwilkar and D Y Chandrachud gave the order, observing that the judgment, upholding the constitutional validity of Section 377 of the IPC needed to be debated upon by a larger bench.
“The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age,” it said referring to the term ‘carnal intercourse against the order of nature’ used in Section 377 IPC.
“The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. 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,” the Bench said.
The Bench considered the recent nine-judge Bench verdict on right to privacy that had considered that a person has the right to choose the sexual partner and said that it did not deal with the Constitutional validity of Section 377 of IPC.
"Be it noted, the said decision did not deal with the constitutional validity of Section 377 IPC as the matter was pending before the larger bench. The matter which was pending before the larger Bench is a curative petition which stands on a different footing," it said.
The bench said, "A section of people or individuals who exercise their choice should never remain in a state of fear.
"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. But that law must have the acceptability of the constitutional parameters. That is the litmus test," the bench said.
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, which was hearing the petition filed by celebrities including chef Ritu Dalmia, hotelier Aman Nath and dancer N S Johar, however, made a distinction that the penal provision, which also deals with such carnal sex involving animals and children, will not be dealt with by the larger bench.
"The consent of two adults has to be the primary consideration and otherwise children will become the prey. The protection of children in all sphere has to be guarded," the bench said, adding that the CJI, on the administrative side, will decide on setting up the larger bench.
The bench also directed that the copy of the petition filed by members of lesbian, gay, bisexual and transgender (LGBT) community, be served on the Union Ministry of Law and Justice to ensure proper representation.
During the hearing, the court considered the submission of senior advocates Arvind Datar and Kapil Sibal and said that it appeared that the penal provision hurt sexual preferences of individuals.
Datar said the provision is unconstitutional as it provides for 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," he said while referring 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 fundamental right.
Datar submitted that though curative petitions against the 2013 Suresh Kumar Koushal verdict are pending before the Supreme Court, the challenge in those will be possible only on two narrow grounds.
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.
Naz Foundation had filed a petition in December 2001 in the High Court, which had on July 2, 2009, decriminalised Section 377.
After refusing twice to entertain the pleas against Section 377, the SC on February 2, 2016 referred the issue to a five-judge bench.
The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable up to life imprisonment.
It had revived the penal provision making gay sex an offence punishable with life term.
While setting aside the July 2, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by high court was legally unsustainable.
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