Spell out stand on validity of IPC Section 377: Supreme Court to Centre

Delhi: The Supreme Court on Monday asked the Centre to spell out its stand on constitutional validity of IPC Section 377 that makes gay sex illegal between two consenting adults and providing for their prosecution.

A three-judge Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud gave a week’s time to Additional Solicitor General Tushar Mehta for the government to file reply, if any in this matter before the Constitution bench takes up the matter within the next few days.

Appearing for Keshav Suri, engaged in hospitality industry seeking to quash Section 377, senior counsel Mukul Rohatgi submitted that this matter might be tagged with a bunch of petitions to be heard by a Constitution bench.

He told the court that though the matter is to be heard in about two weeks time, the Centre has not spelt out its stand on constitutionality of this provision. Accordingly the bench asked the ASG to file the government’s response in this regard.

Though a two-judge bench of apex court has upheld this provision, considering the importance of the issue, it has been referred for adjudication by a five judge Constitution bench.

Even before the two-judge bench, the Centre did not take a categorical stand on the validity or otherwise of Section 377 and left it to the wisdom of the apex court to decide.  

In the present petition, Keshav Suri, engaged in hospitality industry, said he is in a committed relationship for nearly a decade with another adult man and has been consensually residing together with him. He is part of the Lesbian, Gays, Bi-sexual, Transgender and Queer (LGBTQ) community in India.

He argued that after the nine-judge bench verdict holding that right to privacy is a fundamental right; Section 377 cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation. He pointed out that a provision does not become unconstitutional because there can be abuse of the same.

He said social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.

Referring to the penal provision of prosecution, he said a section of people or individuals who exercise their choice should never remain in a state of fear.

Suri submitted that persons from LGBTQ community are ridiculed in various spheres of life. Equal work opportunities and pay is not given to individuals who have chosen their sexual orientation. He himself has suffered mentally and been stigmatised on account of his sexual orientation at a personal and professional front.

He has to deal with non-acceptance of his fundamental and intrinsic choice, i.e. his homosexuality with his family and thereafter even professionally questions were raised about his sexuality, which does not normally happen with heterosexual individuals.

He said criminalisation of homosexuality is based on stigma and the same stigma being perpetuated by the legal system shatters the constitutional pillars of right to liberty, right to dignity and right to non-discrimination.

He therefore prayed for a declaration that the provision is illegal and unconstitutional.