NEW DELHI: The Supreme Court is set to revisit a colonial-era law that criminalises homosexuality and gay sex between two consenting adults under Section 377 of the Indian Penal Code (IPC).
A 3-judge Bench, headed by Chief Justice Dipak Misra, on Monday referred the matter to a larger Bench, maybe a 5-judge Constitution Bench, to re-examine before October the British-era law that bans “carnal intercourse against the order of nature with any man, woman or animal” and prescribes life imprisonment or imprisonment of either description up to 10 years.
Delhi High Court had struck down Section 377 as unconstitutional, but the Supreme Court reinstated it four years later in 2013 and rejected in January 2014 a plea filed by the government and activist groups to review its shocking ruling on the gay sex. The government had then gone to the court since its ruling to reinforce the law was met with international criticism as India faced condemnation from major establishments including the United Nations. The retraction was considered largely controversial because of article 21, which guaranteed the right to privacy.
After the dismissal of the review plea against the 2013 judgment, a curative plea was filed which was referred to a larger bench. The fresh plea of Navtej Singh Johar heard on Monday an that of others will now be also heard by the larger Bench. Johar had sought to declare Section 377 as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex.
The decision to examine the law once again comes as the court found that less than 200 people had been convicted for the homosexual acts since 2013 when it declared Section 377 as valid and constitutional. The court decided to better reconsider its ruling as it said “a section of people or individuals who exercise their choice should never remain in a state of fear,” while stressing that “choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under article 21 of constitution.”
The Bench which also included Justices A. M. Khanwilkar and D. Y. Chandrachud said the issue requires to be debated upon by a larger bench. It was hearing a fresh plea filed by one 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,” Datar said and 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 part of fundamental right. He also referred to the 2009 Delhi High Court judgment delivered on a plea of NGO ‘Naz Foundation’ in which the provision was held unconstitutional.
Activist say Section 377 is used to blackmail and intimidate LGBT (Lesbian, Gay, Bisexual and Transgender community) and prevent healthcare access for HIV and AIDS. They say the law is more commonly used for convicting those who carry out sexual offences against children with approximately 1,347 cases taking place in 2015.
The legal experts welcomed the Court’s decision to revisit its ruling. Senior advocate Anand Grover exuded confidence that the challenge has “no choice but to succeed.” He referred to a ruling last year in a private case that set precedent for giving basic human rights to LGBT people. The 9-judge ruling, which was on an unrelated privacy case, appeared to affirm that LGBT people deserve basic right to live, ahead of a wider challenge to Section 377 as it had held that “sexual orientation is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”
