A section of people or individuals who exercises its choice should never "remain in a state of fear", the Supreme Court today said while agreeing to reconsider its 2013 verdict criminalising gay sex.
A section of people or individuals who exercises its choice should never "remain in a state of fear", the Supreme Court today said while agreeing to reconsider its 2013 verdict criminalising gay sex.
A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, in its detailed order, dealt with various aspects of law, constitutional and societal morality and said the issue of criminalising consensual gay sex needed to be debated upon by a larger bench.
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," the bench 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.
The bench considered the recent nine-judge bench judgement 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 the 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.
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