With the right to privacy now a fundamental right, the Supreme Court on Monday set up a Constitution Bench to re-examine its 2013 decision which declared homosexuality to be a crime categorised as “unnatural sex” under the Indian Penal Code (IPC) Section 377.
The order came on a PIl filed by five persons from the lesbian, gay, and bisexual (lGB) community. They sought a fresh look at the SC’s 2013 decision in view of the landmark privacy judgment.
Naz Foundation, an NGO, has already filed a curative petition against the 2013 SC order. The hearing on its appeal is pending since April 2014.
Distinguishing the instant PIl filed by affected citizens from the curative plea moved by the NGO, the Bench headed by Chief Justice Dipak Misra felt that the case at hand raised grave questions of constitutional importance relating to an individual’s sexual orientation and sexual right to choose his/her partner. The court also said that the scope of curative petition was limited and hence the 2013 decision needs to be separately gone into from the aspect of individual’s autonomy and privacy.
“The morality that public perceives, the Constitution may not conceive of. 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,” observed the Bench, also comprising Justices AM Khanwilkar and DY Chandrachud. Senior advocates Arvind Datar and Kapil Sibal submitted that following the nine-judge Bench decision on right to privacy, “Section 377 IPC has the potentiality to destroy the individual autonomy and sexual orientation.”
He even cited quotes from the privacy judgment decided last year where three out of nine-judges discussed the need to revisit the 2013 decision in view of a citizen’s right to privacy and autonomy, which includes sexual right.
Issuing notice to the Centre to respond to the PIl before the matter is taken up next, the Bench said, “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 the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution.” With the fear of law forcing lGBT community members to suppress their sexual orientation, the Bench said, “A section of people or individuals who exercise their choice should never remain in a state of fear.”
The Bench made it clear that the challenge to Section 377 is on the aspect of sex between two consenting adults of lGB community in order to ascertain whether this law has the acceptability of Constitutional parameters. The offence of “carnal intercourse” with animals will remain as petitioners did not challenge this aspect contained in Section 377.
The petitioners before the court comprised noted classical dance exponent Navtej Singh Johar, senior journalist Sunil Mehra, hotelier and chef Ritu Dalmia, writer and historian Aman Nath, and corporate executive Ayesha Kapur. The matter has been marked to the Chief Justice of India for setting up an appropriate larger Bench.