Larger bench to decide on Sec 377  

Larger bench to decide on Sec 377  

Context

The Supreme Court has referred to a larger Bench a writ petition filed by five gay and lesbian members of the LGBT community to strike down the colonial Section 377 in the Indian Penal Code of 1860, which criminalises homosexuality

What has happened?

A three-judge Bench, led by Chief Justice of India DipakMisra, decided to revisit a December 2013 verdict of the Supreme Court in the Suresh Kumar Kaushal versus Naz Foundation, which dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation

Court’s observations

• Law should change pace with life: The Bench said a section of people cannot live in fear of a law which atrophies their right to follow their natural sexual inclinations. It said societal morality changes with time, and law should change pace with life
• Section 377: While the court noted that Section 377 punishes carnal intercourse against the order of nature, it added, “The determination of order of nature is not a common phenomenon. Individual autonomy and individual natural inclination cannot be atrophied unless the restrictions are determined as reasonable.”
  • The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample on or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution
• It noted the arguments of senior advocate ArvindDatar and advocate MenakaGuruswamy, who appeared for the petitioners, that Section 377 is not a reasonable restriction on the fundamental right to choice

Who are the petitioners?

The petitioners include Navtej Singh Johar, Bharathanatyam dancer; Sunil Mehra, senior journalist; RituDalmia, restaurateur; AmanNath, an expert on Indian art and culture; and Ayesha Kapur, food and beverage industry consultant

Court’s view

The court agreed that both its decisions emphasising transgender identity in the NALSA case and the observations made by a nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warrant a re-look into its dismissive verdict in the Naz case

What did the petition say?

A right to sexuality, sexual autonomy and freedom to choose a sexual partner forms the cornerstone of human dignity which is protected under Article 21

A paradigm shift

The order reveals a paradigm shift in the apex court’s views

• A Review Bench of the Supreme Court, in January 2014, had agreed with the December 11, 2013 verdict refusing to strike down Section 377 IPC. The 2013 verdict had, instead, set aside the historic and globally accepted verdict of the Delhi High Court
• The High Court had read down Section 377 and declared that the penal provision targeted homosexuals as a class