Open to review gay sex verdict's correctness: Supreme Court

New Delhi: The Supreme Court on Tuesday indicated that it was open to examine the correctness of its own 2013 two-judge verdict upholding IPC Section 377 that criminalises consensual gay sex. One of the five judges on the  Constitution Bench said that the right to choose a partner of same sex is also a right under Article 21 of the Constitution.

The bench, headed by Chief Justice Dipak Misra, observed that it will examine whether the fundamental right to life includes “right to sexual freedom”, particularly after the nine-judge bench ruling that “right to privacy” is a fundamental right, and not venture into the issue of marriage relating to the LGBTQ community or inheritance in live-in relationships.

“The question here is whether Section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to (same sex) live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now,” said the bench, also comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, while outlining the broad issues which would be open for arguments. This was decided after judges on the bench, initially, differed over the scope and extent of examining the penal provision. The hearing will continue on Wednesday.

The bench is hearing a batch of petitions seeking a declaration that Section 377 is unconstitutional as it makes gay sex as carnal intercourse against the order of nature and provides for a punishment of upto life. However, such punishments are very rare as no such case is being prosecuted effectively.  

The CJI told senior counsel Mukul Rohatgi, who appeared for petitioner dancer Navtej Singh Johar, that the principal question to be addressed by the court is the correctness of 2013 verdict in the Suresh Koushal case as it affects the basic constitutional and human rights of a large section of society, called the sexual minority.

In was on the petition of Mr Koushal, an astrologher, that the Supreme Court on December 11, 2013, set side the 2009 judgment given by the Delhi high court stating that judicial intervention was not required in this issue. This in effect recriminalised sexual intercourse “against the order of nature”.

During the high court proceedings, the Union home and health ministry had taken different positions, the former arguing for retention of the law, and the latter saying it should be read down.

Mr Rohatgi argued that the British-era law that criminalises consensual gay sex is against the fundamental rights of Indians and societal perception that it is against the law of nature cannot be an excuse for it.

During the hearing, Justice Chandrachud talked about the right to chose a partner, including one from the same sex, and observed, “in Hadiya (Kerala love jihad judgment), we recognised the right to choose a partner to come under Article 21 (right to life). When you accept this proposition, then right to choose a partner of same sex is also a right under Article 21 of the Constitution”.

The court in its verdict in the Hadiya case in March had held that neither the state nor one’s parents can influence an adult’s choice of partner. The apex court had ruled that an attempt to influence the choice of partner violates the fundamental right to privacy. Hadiya, a Hindu girl from Kerala, had converted to Islam and married a Muslim man against the wishes of her parents, who forced her to live away from him. After the Supreme Court’s ruling, she was reunited with her husband.

Mr Rohatgi said individuals with a different sexual orientation need protection, more so than those having the more common orientation (heterosexual), to achieve their full potential and not be discriminated against by society, in the light of the “right to privacy” verdict.

He said individuals belonging to this group suffer discrimination — open, insidious and invidious — throughout their lives, whether it be in school, college, employment (under the State or in private quarters) and even within their family.

Arguing for another petitioner, senior counsel Arvind P. Datar told the 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 rights of sexual orientation of the LGBT rights.