Supreme Court agrees to reconsider its earlier decision on Section 377

The Supreme Court on Monday agreed to reconsider its 2013 verdict criminalising gay sex and referred to a larger bench the plea challenging the penal provision, observing the societal morality "changes from age to age."

Giving a ray of hope to the gay, lesbian and transgendered communities which are pushing for scrapping Section 377 of the IPC that criminalises homosexuality, the court decision moved a step towards a final judicial call on the controversial provision that has been described as "archaic."

Noting that the curative petition against its 2013 judgement is pending before a five-judge Constitution bench, the apex court said the present petition will also be heard by the same larger bench and that a finality could be attained whether gay sex between two consenting adults can be decriminalised.

A bench comprising Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud gave the order, observing that the judgement, upholding the constitutional validity of Section 377 of the IPC needed to be debated upon.

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 judgement, had said "minuscule fraction of the country’s population constitutes 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 is of utmost social and legal significance and a positive move has been initiated by the apex court for a re-look into the earlier judgement which, according to them, required reconsideration.

"It’s quite refreshing to see a positive stand in the matter. The judgement of the apex court declaring 377 to be intra vires really requires a serious reconsideration. This provision itself on the face of it is archaic and it is wholly unconstitutional. Nobody can support it under any circumstances," Dave 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.

"Section 377 uses phraseology carnal intercourse against the order of the nature. The determination of order of the nature is not a Constitutional phenomenon and societal morality also changes from age to age," the bench said while referring the petition filed by celebrities including chef Ritu Dalmia, hotelier Aman Nath and dancer NS Johar to a larger bench.

It, however, made a distinction that the penal provision, which also deals with such carnal sex involving animals and children will not be dealt 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, in his administrative side, will decide on setting up of 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 that the provision is unconstitutional as it 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," 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.

The bench, in its order, also referred to the privacy judgement and terms like social and constitutional morality, individual choices of sexual preferences and said that the law must have the sanction of the Constitution.

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.

"Civilisation has moved on. As far as the Delhi High Court judgement is concerned, it has held that there is no question of carnal intercourse being against the order of nature. The Supreme Court overturned this on the ground that only a minuscule population is affected. The apex court has to decide whether the Right to choose a partner is limited to partner of the opposite sex," Datar said.

The bench said that the challenge was only to the extent of penalising consenting sex between adults and not with respect to sex with animals or minors.

Datar 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 the high court was legally unsustainable.