SC refers plea against section 377 of IPC to larger bench

The Supreme Court on Monday decided to reconsider its 2013 judgement criminalising homosexuality.

The court said law and social morality have to change with time and a section of individuals who wanted to exercise their choice cannot remain in a constant state of fear.

A three-judge bench presided over by Chief Justice Dipak Misra referred a writ petition filed by Navtej Singh Johar and others, challenging the constitutional validity of Section 377 of the IPC, for consideration before a larger bench.

Section 377 makes "carnal sex against the order of nature" punishable for a maximum term of life imprisonment.

In a big win for the Lesbians, Gays, Bi-sexual and Transgenders (LGBT) community, the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, decided to examine the issue on the basis of larger constitutional principles and in light of the judgements in NALSA (transgenders case) and Justice K Puttaswamy (right to privacy) wherein individuals' sexual orientation has been given due emphasis.

In its order, the court said, "The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution."

Though the natural orientation and choice cannot be allowed to cross the boundaries, the law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution, the bench added.

The morality that public perceives, the Constitution may not conceive of, the bench noted.

Appearing for the petitioners, senior advocate Arvind Datar, along with Kapil Sibal, contended that the apex court's two-judge bench had earlier in 2013 overruled a 2009 judgement of the Delhi High Court that had decriminalised Section 377 on a plea by an NGO, Naz Foundation and others.

A curative petition in this regard is still pending.

They said the apex court was then guided by the concept of social morality but the constitutional principles stood on a higher pedestal.

"Section 377 of the IPC has the potentiality to destroy the individual autonomy and sexual orientation," the counsel said.

Agreeing to their view, the court said as curative jurisdiction stood on a different footing, the 2013 verdict in Suresh Kumar Koushal case required consideration by a larger bench.

The court asked the Union government to explain its stand on the petition filed Johar, Bharatnatyam dancer, senior journalist Sunil Mehra, restaurateur Ritu Dalmia and Aman Nath, an expert on Indian art and culture.