The Supreme Court on Monday said that it will revisit its verdict on Section 377 of the Indian Penal Code that criminalised homosexuality.
A three-judge bench of Supreme Court, headed by CJI, said it would reconsider and examine the Constitutional validity of Section 377. The apex court referred to a Constitution bench the petition seeking to decriminalise consensual sex between LGBTQ adults
The decision of the apex court came during a hearing of a plea filed by LGBT community.
The court, while listening to the petition said that no community or indivicual should live in the state of fear. "A section of people or individuals who exercise their choice should never remain in a state of fear," the bench observed.
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.
He also referred to the 2009 Delhi High Court judgement delivered on a plea of NGO 'Naz Foundation' in which the provision was held unconstitutional.
Subsequently, the apex court in 2014 had set aside the high court judgement and termed the provision as constitutional.
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 Supreme Court bench of Justices G.S. Singhvi and S.J. Mukhopadaya in 2013 scrapped a high court verdict that decriminalized consensual sex among homosexual adult.
In 2009, the Delhi high court had ruled that Section 377 of IPC, which criminalizes sex between adult homosexual men, was unconstitutional.
Section 377 holds that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence. The Bench said: “We hold that Section 377 does not suffer from… unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.” It, however, said: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it as per the suggestion made by Attorney-General G.E. Vahanvati.”
With Agency Inputs