The Supreme Court today announced a review of a hugely controversial ban on gay sex, saying no one should have to live in fear because of their sexuality. The apex court referred to a larger bench a plea by five high-profile people seeking decriminalisation of gay sex between two consenting adults.
“A section of people who exercise their choice should never live in a state of fear,” said the court in its ruling, adding that “societal morality” was subject to change over time. A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the issue arising out of section 377 of the Indian Penal Code (IPC) required to be debated upon by a larger bench.
The announcement is the latest chapter in a long-running legal tussle between social and religious conservatives and the gay community over the law passed by the British in the 1860s. Section 377 of the IPC refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any 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 to pay a fine.
The bench 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 judgement in the privacy matter to highlight the point that the right to choose a sexual partner was part of fundamental right. Gay sex was effectively decriminalised in India in 2009 when the Delhi High Court ruled that banning it violated a person’s fundamental rights.
That ruling emboldened the gay community to campaign publicly against widespread discrimination and violence. But the Supreme Court reinstated the ban four years later in 2013, saying responsibility for changing the law rested with lawmakers not the courts.
That verdict was thrown into doubt again last year when the court referred explicitly to the issue in a landmark ruling upholding the right to privacy. “The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity,” it said in the ruling.
Last year, Congress MP Shashi Tharoor brought the Indian Penal Code (Amendment) Bill seeking changes in Section 377 of IPC (unnatural offence) but it was defeated in the Lok Sabha. After the dismissal of the review plea against the 2014 judgement, a curative plea was filed which was referred to a larger bench.
The fresh plea of Johar and others will now also be heard by the larger bench. The petitioners are Navtej Singh Johar, a Sangeet Natak Akademi Award-winning Bharatnatyam dancer; Sunil Mehra, a senior journalist; Ritu Dalmia, a restaurateur; and Aman Nath, founder of the Neemrana chain of hotels.
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