SC to reconsider Section 377 that criminalises homosexuality

The Supreme Court said on Monday it will revisit its 2013 verdict upholding Section 377 of the Indian Penal Code that bans homosexual sexual acts, and referred a petition against the controversial colonial law to a larger bench.

A three-judge bench of the SC led by Chief Justice Dipak Misra said the 2013 judgment, which overturned a 2009 Delhi high court verdict that decriminalised consensual same-sex acts, was guided by the perception of majority and concept of social morality.

“Concept of consensual sex may have more priority than a group right and may require more protection. A section of people or individual who exercise their choice should never live in a state of fear,” the court said.

“What is natural to one may not be natural to the other.”

The petition, which challenges the legal validity of Section 377 on the ground that it is not a reasonable restriction because the law has the potential to destroy an individual’s choice and sexual orientation, was filed by five prominent members of the Lesbian, Gay, Bisexual, Transgender (LGBT) community.

“The determination of order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly change takes place,” the SC said, asking the petitioners to provide a copy of the petition to the central government’s office so that the Centre can be represented in the case.

Read | SC refers Article 377 to larger bench: A timeline of legality of homosexuality in India

The petitioners – bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra – had said they lived in fear because of Section 377 and the 2013 judgment ignored harassment and problems arising out of the law.

“It is a small victory but it has brought back some hope, for the first time. I am very happy about the development and have full faith in the court, the judiciary system and the Constitution,” Dalmia told Hindustan Times. “I think it (repealing of Section 377) is just a matter of time now.”

Section 377 punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment, though formal prosecution is rare. But activists allege the law forces LGBT people to live in fear and face blackmail, intimidation and pervasive discrimination.

The court noted it will not judge that portion of the law that criminalises intercourse with an animal. It also specified the discussion would be restricted to consenting adults so that children remain protected. “Consent between two adults has to be primary pre-condition otherwise children would become prey, which the constitution does not allow. Protection of children in all spheres has to be guided,” it said.

In 2009, Section 377 was read down by the Delhi high court, which decriminalised consensual adult same-sex relationships. But this was overturned in December 2013 by the top court, which asked Parliament to bring a law.

A two-judge bench headed by justice GS Singhvi had said “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”.

A review petition against the decision was dismissed but a curative petition, the last available judicial recourse against an apex court decision, is pending in the SC. The top court has said that the curative will be decided on the limited grounds as raised in the petition. But the petition by the eminent LGBT personalities raised larger issues that needed consideration, it added.

Monday’s order holds out hope for LGBT activists as arguments in the case will be heard afresh and petitioners can draw support from last August’s right to privacy judgment that had upheld the right to sexual orientation and choice of sexual partners. A nine-judge bench of the court had observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”

The CJI’s bench said natural and sexual orientation and choice could not be allowed to cross the boundaries of law. “But the confines of law cannot trample or curtail the inherent right embedded in an individual under article 21 (right to dignity),” the top court added.

While the court noted that Section 377 punishes “carnal intercourse against order of nature”, it added that “the determination of order of nature is not a common phenomenon. Individual autonomy and individual natural inclination cannot be atrophied unless the restrictions are determined as reasonable.”