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Supreme Court to re-examine its order that made gay sex a crime

Those exercising choice shouldn't be in fear: Bench

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The Supreme Court has said that it will decide whether or not homosexuality will remain a crime in India, 18 months after it agreed to revisit its 2013 judgment that had criminalised gay sex. The fresh glimmer of hope for the country's LGBT community also comes four months after the top court declared individual privacy a fundamental right.

A three-judge bench headed by the Chief Justice of India, Dipak Misra, said on Monday that a larger group of judges will reconsider and examine the constitutional validity of Section 377 of the IPC that makes homosexuality an offence punishable by 10 years to a life term in jail. In 2013, the top court had set aside a Delhi high court order that had decriminalised homosexuality by overturning the colonial-era law. The top court had then said that it was the job of Parliament to decide on scrapping laws.

Although prosecution under Section 377 is not common, gay activists have been alleging the police use the 1861 law to harass and intimidate members of their community.

On Monday, the Supreme Court heard a petition that sought to quash the law, and observed that societal morality changes with time and the law should keep pace with life.

The bench said that a section of people or individuals who exercise their choice (sexual orientation) should never remain in a state of fear. The bench decided that its December 2013 verdict in the Suresh Kumar Koushal vs Naz Foundation needed reconsideration. Furthermore the court relied on a National Legal Services Authority judgment that emphasised on a transgender's identity, and also on the privacy judgment that said that "sexual orientation is an essential attribute of privacy."

"Section 377 uses the phraseology 'carnal intercourse against the order of nature'. 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 bench that also comprised Justices AM Khanwilkar and DY Chandrachud.

"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 trample or curtail the inherent right embedded in an individual under Article 21 of the Constitution," the bench said.

The petition has been filed by five prominent people: Navtej Singh Johar (a Sangeet Natak Akademi Award-winning Bharatnatyam dancer), Sunil Mehra (journalist), Ritu Dalmia (chef) Aman Nath (founder, Neemrana Chain of Hotels) and Ayesha Kapur (chef). "Section 377 criminalises a core part of a person's identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. It denies LGBT persons their rights to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution of India. This Hon'ble Court has upheld the right to choice of conjugal partner under Article 21 of the Constitution of India," the petition read.

Senior advocate Arvind Datar represented them and submitted that while Naz Foundation was an NGO fighting a larger cause, he represented petitioners whose fundamental rights are directly affected by Section 377. "Right to choose my partner is part of my fundamental right to privacy," Datar submitted.

"But the privacy judgment says sexual partner means a natural partner," CJI Misra said, to which Datar countered, "Who my 'natural' partner should be is my choice."

However, the top court clarified that Section 377, only with respect to sexual intercourse between consenting adults, was to be relooked and bestiality, sex with animals, was not in the ambit of reconsideration.

Back & Forth

  • 2001 Naz Foundation moves Delhi HC seeking legalisation of gay sex 
  • 2004  HC dismisses PIL. Review plea also dismissed 
  • 2006  SC tells HC to reconsider the case on merit 
  • 2009  HC legalises gay sex among consenting adults
  • 2013  SC sets aside HC order that legalised homosexuality
  • 2014  SC dismisses a Central govt plea for review of its order
  • 2017  SC declares individual privacy a guaranteed fundamental right 
  • 2018  SC says its 2013 order requires reconsideration

Top five observations of the apex court

  • People who exercise their choice should never remain in fear. What is natural to one may not be natural to others
  • Social morality also changes from age to age. The law copes with life and accordingly change takes place
  • The confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of the Constitution
  • Taking all aspects in cumulative manner, we are of the view that the earlier (2013) decision requires reconsideration
  • Sec 377 will be re-looked only with respect to sex between consenting adults; bestiality is not in the ambit of consideration 
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