Supreme Court Constitution bench to revisit Section 377 verdict

New Delhi: The Supreme Court will revisit the 2013 verdict making gay sex illegal between two consenting adults and providing for their prosecution.

A five judge Constitution Bench headed by the Chief Justice Dipak Misra will commence hearing from July 10, a batch of petitions for a declaration that Section 377 IPC as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex. Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chandrachud and Ms. Indu Malhotra are the other judges on the Bench.

A two judge bench in 2013 had ruled that Section 377 IPC which barred any form of sex against the order of nature" as illegal. It has passed the verdict while overturning a judgment of a three-judge bench of the Delhi High Court, which had earlier taken a contrary view and had decriminalized the IPC provision.

Section 377 IPC says "Whoever voluntarily has carnal intercourse against the order of nature with 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 for be fine.

Though a two-judge Bench of apex court has upheld this provision, considering the importance of the issue, it has been referred for adjudication by a five judge Constitution bench.

Even before the two-judge bench, the Centre did not take a categorical stand on the validity or otherwise of Section 377 and left it to the wisdom of the apex court to decide.  

Some of the petitioners who are part of the Lesbian, Gays, Bi-sexual, Transgender and Queer (LGBTQ) community in India, argued that after the nine-judge bench verdict holding that right to privacy is a fundamental right, Section 377 cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation

It was argued that 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

Referring to the penal provision of prosecution, they said a section of people or individuals who exercise their choice should never remain in a state of fear. They said criminalisation of homosexuality is based on stigma and the same stigma being perpetuated by the legal system shatters the constitutional pillars of right to liberty, right to dignity and right to non-discrimination. They prayed for a declaration that the provision is illegal and unconstitutional.

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