Rainbow of hope: Supreme Court set to revisit gay sex criminality

New Delhi: Observing that societal morality changes over time, the Supreme Court said on Monday that it will revisit its 2013 verdict upholding Section 377 of the Indian Penal Code (IPC) that bans homosexual acts, and referred to a larger bench a petition against the controversial law dating back to 1860.

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

Endorsing a rethink on the law, the CJI observed, “Societal morality changes from age to age. Law copes with life and accordingly change takes place. Morality that public perceives, constitution may not conceive of.”

“A section of people or individuals who exercise their choice should never remain in a state of fear. 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 the Constitution,” the bench observed.

The bench, which also included Justices A.M. Kanwilkar and D.Y. Chandrachud, referred to a five-judge Constitution Bench a petition filed against the apex court’s 2013 verdict by Navtej Singh Johar, a Sangeet Natak Akademi award-winning Bharatnatyam dancer, and three others seeking a declaration that Section 377 of the IPC is unconstitutional as it penalises adults for indulging in consensual gay sex.

Senior advocate Arvind Datar, appearing for Mr Johar, said that the penal provision was unconstitutional as it also provided prosecution and sentencing of consenting adults.

Other petitioners, apart from Mr Johar, are journalist Sunil Mehra, restaurateur Ritu Dalmia and hotelier and art expert Aman Nath.

In 2013, a two-judge bench of Justices G.S. Singhvi and S.J. Mukhopadaya had ruled that Section 377 of the IPC was illegal, overturning a judgment of a three-judge bench of the Delhi high court which had decriminalised gay sex.

Section 377 reads, “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 10 years, and shall also be liable for be fine.”

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.

On Monday, Mr Datar told the CJI-headed bench that gay activists in the country live under constant fear of persecution and said a nine-judge bench in the right to privacy matter had also heavily commented upon the sexual orientation rights of the LGBT (lesbians, gay, bisexuals and transgenders) group.

Chief Justice Misra, while referring the matter to the Constitution Bench, said, “The concept of consensual sex may have more priority than a group that may require protection. A section of people or individual who exercise their choice should never live in a state of fear. What is natural for one may not be natural for the other.”

The brief order said that the apex court will take a re-look at the judgment only with regard to consensual sex between consenting adults and not carnal sex with children or animals.

The court referred the matter to a Constitution Bench and issued a formal notice to the Union government for its response on the issue.

“Consent between two adults has to be primary. Protection of children in all spheres has to be guided,” the CJI said.

Welcoming the apex court decision to review its 2013 decision on gay sex, Congress spokesperson Manish Tewari said Section 377 should be decriminalised and hoped that the government would repeal it or courts read down the article. “The time has come that either the courts must read down Section 377 or the government should repeal it from the IPC. It is an archaic provision which has no place in 21st century India,” he told reporters.