SC Gives Glimmer of Hope, Announces Plans to Review Section 377

The order came after a new plea sought decriminalisation of carnal sex between two consenting adults.

Will India finally decriminalise homosexuality?

(Photo: The Quint)

A section of people or individuals that exercises its choice should never "remain in a state of fear", the Supreme Court today said while agreeing to reconsider its 2013 verdict re-criminalising sexual acts between members of the same sex.

A bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud said that the issue arising out of Section 377 of the Indian Penal Code (IPC) required debate by a larger bench.

The bench said, “Individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.”

Referring to the term “carnal intercourse against the order of nature” used in section 377 IPC, the bench 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. 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.

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.

"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.

The bench was hearing a fresh plea filed by 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.

Arvind Datar, senior advocate

Datar referred to a recent nine-judge bench judgment in the privacy matter to highlight the point that the right to choose a sexual partner was a fundamental right.

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 judgment and termed the provision as constitutional. After the dismissal of the review plea against the 2014 judgment, a curative plea was filed, which was referred to a larger bench.

The fresh plea of Johar and others will now be heard by the larger bench. The SC also issued a notice to the Centre, seeking a response to a writ petition filed by five members of LGBT community who allege that they live in fear of the police because of their sexual preferences.

All India Mahila Congress president Sushmita Dev said the Congress welcomed the move.

People across the board welcomed the SC’s decision to revisit its earlier order.

But status quoist voices were also heard. BJP’s Subramanian Swamy said that what people did in their own private lives was fine, but that it shouldn’t go beyond that.

As long as they don’t celebrate it, don’t flaunt it, don’t create gay bars to select partners, it’s not a problem. In their privacy what they do, nobody can invade, but if you flaunt it, it has to be punished and therefore there has to be Section 377 of the IPC.

(With inputs from PTI, IANS, ANI)

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