Section 377: Supreme Court will revisit its order banning gay sex; societal morality changes with time

Section 377: A three-judge bench headed by CJI Dipak Misra on Monday said the Supreme Court would re-examine the Constitutional validity of Section 377.

Written by Ananthakrishnan G | New Delhi | Updated: January 9, 2018 8:15 am
Section 377 Supreme Court will revisit its order banning gay sex Section 377 also punishes sexual intercourse with animals. But the Supreme Court made it clear it will not go into that aspect after the petitioners submitted that they were also not pressing this. (File Photo)

Rekindling hope among many fighting for LGBT rights, the Supreme Court Monday decided to revisit its December 2013 order upholding the constitutional validity of Indian Penal Code section 377 which criminalises same-sex relations between consenting adults.

A three-judge bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, while “taking all aspects in a cumulative manner, we are of the view that the decision in Suresh Kumar Koushal ‘s case requires reconsideration”, referred the matter to a larger bench to be constituted by the CJI and also sought the assistance of Union of India in the matter.

The bench noted that “a section of people or individuals who exercise their choice should never remain in a state of fear” and “societal morality also changes from age to age”.

In December 2013, ruling on Suresh Kumar Koushal and another vs NAZ Foundation and Others, the bench of Justices G S Singhvi and S J Mukhopadhaya upheld the validity of the British-era provision, upsetting a 2009 verdict of the Delhi High Court which held IPC section 377 in so far as it criminalises consensual sexual acts of adults in private as violative of Articles 14, 15 and 21 of the Constitution. A review against the 2013 decision was dismissed and a curative petition — a curative plea is filed after the review petition — is pending in the Supreme Court.

Also Read |Editorial: Make it right

Sectipon 377: “A section of people or individuals who exercise their choice should never remain in a state of fear,” the SC bench said. (Source: Express photo by Partha Paul)

The order Monday to revisit the 2013 ruling came on a 2016 petition filed by Navtej Singh Johar, a Bharatnatyam dancer honoured with the Sangeet Natak Akademi award, journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath of the Neemrana chain, and Ayesha Kapur, a psychology graduate.

Perusing their plea, the bench observed that the concept of consensual sex may have more priority than a group right and may require more protection. “A section of people or individuals who exercise their choice should never remain in a state of fear,” it said.

“What is natural may not be natural to the other. But the said natural and sexual orientation and choice cannot be allowed to cross boundaries of law but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of Constitution,” the judges said.

On the phraseology of section 377 which criminalises “carnal intercourse against the order of nature”, the bench said “determination of the order of nature is not a constant phenomenon. Societal morality also changes from age to age”.

Section 377 also punishes sexual intercourse with animals. But the court made it clear it will not go into that aspect after the petitioners submitted that they were also not pressing this.

Also read | Section 377 to be revisited by SC — A timeline of the case

Appearing for petitioners, senior advocate Arvind Datar referred to the right to privacy judgment in which the Supreme Court ruled that individual sexual orientation is an attribute of privacy.

The petitioners had contended that section 377 “infringes their right to sexuality and also has a cascading effect of barring the petitioners from accessing the unenumerated rights which Supreme Court has held from Article 21 of the Constitution of India.”

They said “the ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfold the full potential of the personality of any human being… Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness”.

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  1. Eve Fernandez
    Jan 9, 2018 at 8:15 am
    Western education and western thoughts have penetrated a miniscule population in our country. Through the English media this group perpetuates its opinions on government and judiciary. The so called progressiveness is only with this group. The opinions of the voiceless majority population in our country living in rural has to be considered by govt before passing laws. Education gives degrees but values are with uneducated.
    (9)(5)
    Reply
    1. tia mathew
      Jan 9, 2018 at 8:42 am
      The majority if India might not be progressive, but the rural vs urban and the Western education relating to progressiveness are B.S theories. People cuted in rural areas by communities escape to seek the anonymity of cities where the population is more mixed versus a homogeneous population of a rural area. It's got nothing to do with progressiveness, our urban populations are conservative too and borderline regressive. If we as a society have to move forward the way you insist then we might have still been practicing the caste system, untouchability etc....... Laws relating to human rights must be above social sentiments.
      (6)(1)
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      1. Deepak Damodaran
        Jan 9, 2018 at 9:53 am
        The chief God of Kerala Ayyapan is the product of a same union of Vishnu and Shiva. There are many blurring of sexual dichotomies in Indian culture in the myths and mores of Indian villages like the Aravan cults and Hijdas Judeo Christian mores of Sodom and Gomorrah vintage perpetuated by Victorian English have no place in either the West or the East today. It is time to repeal the British era laws and bring in more affirming laws that conform to Indian acceptance of sexual fluidity.
        (5)(0)
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      2. Bern Laurent
        Jan 9, 2018 at 6:19 am
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        (1)(0)
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        1. Sanjay Bhattacharya
          Jan 8, 2018 at 10:32 pm
          Our liberals are most immoral. Homosexuality is an unnatural sex. They are asking to legalize this immoral thing. next they will ask same marriage to be recognized. India cannot accept this foreign concept.
          (3)(49)
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          1. tia mathew
            Jan 9, 2018 at 8:46 am
            Unnatural ? because it is not for the purpose of reproduction? Then contraceptives like condoms should be banned and husbands and wives must be separated except for when they want to conceive a kids. The law banning homosexuality was actually a foreign law which India accepted.
            (5)(1)
            Reply
            1. Deepak Damodaran
              Jan 9, 2018 at 9:41 am
              Ignorance is not morality. Are you aware that homosexual couples can marry legally in india as the marriage act doesn't prohibit it? Are you aware that intercourse is not criminal It is only penile insertion anally or orally (also practiced by many heterosexuals as well) that is deemed unnatural. So unless you catch men during anal it is not criminal. You can also prosecute heterosexual couples who engage in anal/oral sex. As weird as this may seem, the SC now states that no weirdo can claim to have caught them in the act as it is a denial of sexual privacy. As both marriage and are legal in india, but has failed to destroy your morality, we can safely agree that anal/oral being legal will still let you remain morally upright and free homosexual and heterosexual Indian citizens from state and societal cution.
              (2)(0)
              Reply
              1. Deepak Damodaran
                Jan 9, 2018 at 9:45 am
                Correction last line should start as : As both homosexual marriage and intercourse are legal in india"....
                (2)(0)
            2. Babu Indian
              Jan 8, 2018 at 5:54 pm
              The policy should be dont ask dont tell . If homos start acting homo in public that will be unprecedented . But they do have their rights in private . So dont ask dont tell is the best policy .
              (25)(43)
              Reply
              1. tia mathew
                Jan 9, 2018 at 8:50 am
                Yes we have a long culture of hypocrisy. Spineless!!!
                (5)(2)
                Reply
                1. Deepak Damodaran
                  Jan 9, 2018 at 9:30 am
                  Pathetic that people have to listen to bilge from others such as this.
                  (5)(1)
              2. Sourabh Sethi
                Jan 8, 2018 at 5:29 pm
                Congress is anti like moslems
                (9)(47)
                Reply
                1. Dildo Shwaggins
                  Jan 8, 2018 at 5:47 pm
                  Kya baat! Andh-bhakt har jagah mil jate hain.
                  (42)(5)
                  Reply
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