Supreme Court larger bench to revisit judgment penalising gay sex

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

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

Endorsing a rethink on the law, the CJI observed, “The determination of order of nature is not a constant phenomenon. Societal morality also 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 Constitution,” the Bench observed.

The Bench, which also included Justices A.M. Khanwilkar 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 to the extent that it provides prosecution of 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 who are indulging in such sex.

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

A two-judge bench of Justices G.S. Singhvi and S.J. Mukhopadaya in 2013 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.”

On Monday, Mr Datar told the Chief Justice-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 rights of sexual orientation rights of the LGBT (lesbians, gay, bisexuals and transgenders) group. 

Chief Justice, 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.”

Nations where homosexuality is legal
The Netherlands (2000)
Canada (2005)
South Africa (2006)
United States (2015)
Australia (2017)