Supreme Court set to review 2013 verdict criminalizing homosexuality
New Delhi: The Supreme Court on Monday agreed to revisit its 2013 ruling criminalizing consensual sex between same sex adults, clearing the way for a fresh round of debate on a controversial colonial-era law governing homosexuality in India.
This follows the apex court’s August judgement which held privacy to be a fundamental right, extending its scope to the sexual orientation of a person as an essential attribute.
A three-judge bench comprising Chief Justice Dipak Misra and justices D.Y. Chandrachud and A.M. Khanwilkar, in response to a plea by representatives of the lesbian, gay, bisexual and transgender (LGBT) community, agreed that there was a need to consider the implication of the privacy judgement on the issue and take another look at the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalizes same sex intercourse, even when it is consensual and between adults.
Misra observed that the question for consideration was that of sexual orientation and individual autonomy, framing the debate within the parameters of the right to life guaranteed by Article 21 of the Constitution.
“What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilized society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test,” the nine-page order said.
The court held that a review of the 2013 ruling and constitutional validity of Section 377 would be considered by a larger bench that is still to be constituted.
A fresh challenge to the 2013 ruling was brought to the apex court by a group of five prominent representatives of the LGBT community —Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.
On 24 August, a nine-judge bench of the apex court held privacy to be a fundamental right, sparking a fresh debate regarding its impact on the decriminalization of homosexuality.
In December 2013, a division bench of the Supreme Court overturned a 2009 high court verdict that had set aside the 1860 law and decriminalized consensual sex among adult homosexual men.
The apex court is also considering a curative petition filed by Naz Foundation Trust, the non-governmental organization that had originally filed a lawsuit in the Delhi high court in 2001. In 2009, the high court had ruled that Section 377 of the IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.
The curative petition filed before the top court argues that the court has incorrectly held that a “minuscule fraction of population cannot claim fundamental rights”. The petition also alleged an issue bias by the court against the LGBT community through its references, such as “the so-called rights of LGBT persons” in its 2013 judgement.
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