NEW DELHI: The Supreme Court on Monday said that it will reconsider andexamine the Constitutional validity of section 377 which criminaliseshomosexuality. The apex court has referred the pleaseeking decriminalisation of sex between two consenting adults to a largerbench.
Chief Justice Dipak Misra, Justices AM Khanwilkar, and DY Chandrachudstated that the issue arising out of Section 377 of the Indian Penal Code(IPC) needs to be debated upon by a larger bench.
The court has also issued a notice to the Central government seekingits response on a writ petition filed by five members of the LGBTcommunity, who stated that they live in fear of police because of theirnatural sexual preferences.
The bench was hearing a plea filed by Navtej Singh Johar seeking to declareSection 377 as unconstitutional. Referring to a recent nine-judgebench judgement in the privacy matter to highlight that right to choose asexual partner is a fundamental right, Johar’s counsel emphasised that “youcan’t put in jail two adults who are involved in consenting unnatural sex.”
In 2013, a two-judge bench of the SC had ruled that under Section 377 ofthe Indian Penal Code, homosexuality will continue to be treated as anoffence irrespective of their age and consent. The court had then out theball in parliament’s court, stating that the government was free to annulthe law through a legislation.
Defending its order, the court had then said that “a miniscule fraction ofthe country’s population constitute lesbians, gays, bisexuals ortransgenders and in last more than 150 years, less than 200 persons havebeen prosecuted for committing offence under Section 377.”
Section 377 of the IPC refers to ‘unnatural offences’ and says that”whoever voluntarily has carnal intercourse against the order of naturewith any man, woman or animal, shall be punished with imprisonment forlife, or with imprisonment of either description for a term which mayextend to ten years, and shall also be liable to pay a fine.”