SC's decision to revisit 2013 judgement to reignite debate on homosexuality

The debate on homosexuality was on Monday reignited by the Supreme Court's decision to revisit its 2013 judgement, upholding validity of Section 377 of the Indian Penal Code.

The Narendra Modi government would now have to explain its stand with the apex court admitting a fresh plea filed by a group of eminent citizens led by Navtej Singh Johar.

A three-judge bench presided over by Chief Justice Dipak Misra, however, clarified that the court would examine only consensual sexual acts between two adults.

"The consent between two adults has to be the primary precondition. Otherwise, children would become prey, and their protection in all spheres has to be guarded and protected," the bench of Justices A M Khanwilkar and D Y Chandrachud said.

Senior advocate Arvind Datar also agreed that he does not intend to challenge that part of Section 377 which is related to carnal intercourse with animals.

Govt stand

The order passed on Monday would throw open an opportunity for the Union government to clarify its stand.  

In the Suresh Kumar Koushal case in 2013, a two-judge bench of Justices G S Singhvi and S J Mukhopadhyay (both since retired) had held that Section 377 of IPC does not suffer from the vice of unconstitutionality. It had said only Parliament has the power to quash the 1861 law, which made gay sex among consenting adults as a punishable offence.

"Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same," the bench said.

The previous UPA government had come in for strong criticism with the two ministries of home and health taking contradictory stands on the subject. The home ministry supported the plea for decriminalising the penal provision, while the health ministry maintained that it would involve risk to human beings. The then attorney general had supported the plea, while several religious bodies opposed it.