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

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.

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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.

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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”.