SC to revisit homosexuality law
HOPE Will reexamine verdict that reinstated Section 377, making samesex relationships a criminal offence
NEW DELHI: The Supreme Court on Monday said it would revisit its 2013 verdict upholding Section 377 of the Indian Penal Code, which criminal is es homosexuality and referred a petition against the controversial colonial-era law to a larger bench.
A three-judge bench led by Chief Justice Dipak Misra suggested that the 2013 judgment, which overturned a 2009 Delhi high court verdict that de criminalised homosexual relationships between consenting adults, was guided by the court’ s perception of the social morality of most Indians. “Concept of consensual sex may have more priority than a group right and may require more protection. A section of people or individuals who exercise their choice should never live in a state of fear,” the court said.
“What is natural to one may not be natural to the other.”
The plea, which challenges the legal validity of Section 377 onthe grounds that the law has the potential to destroy an individual’s choice and sexual orienta- tion, was filed by five members of the Lesbian, Gay, Bisexual, Trans gender( L GB T) community.
“The determination of order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly change takes place,” the court said, asking the petitioners to provide a copy of the petition to the Union government so that it can be represented in the case.
The petitioners—B ha rat natyam dancer Navtej Joh ar, culture expert Am an Na th, rest aurat eurs Ritu Dalmia and Ayesha Kapur, and mediaperson Sunil Mehra — said they lived in fear because of Section 377 and that the 2013 judgment ignored problems arising out of the law.
Monday’ s order holds out hope for LGBT activists as arguments in the case will be heard afresh and petitioner scan draw support from last August’s right to privacy judgment that spoke of the right to sexual orientation and choice of sexual partners. A ninejudge bench of the court observed then that the chilling effect of Section 377“poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”
India is among few modern democracies that still criminal i se homosexual acts. Section 377 was introduced in 1861 during British rule. It was repealed in England and Wales in 1967.“This is a small victory but it has brought back some hope, for the first time. I am very happy about the development and have full faith in the court, the judiciary system and the Constitution ,” Dal mia said .“I think it (repealing of Section 377) is just a matter of time now.”
Section 377 punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment, though formal prosecution is rare. But activists allege the law forces the LGBT community to live in fear and face blackmail, intimidation and pervasive discrimination. The court noted that it would not judge that portion of the law that criminalises intercourse with an animal. It also specified the discussion would be restricted to consenting adults so that children remain protected. “Consent between two adults has to be the primary pre-condition otherwise children would become prey, which the Constitution does not allow. Protection of children in all spheres has to be guided,” it said.
In 2009, Section 377 was read down by the Delhi high court, which decriminalised consensual same-sex relationships between adults, but this was overturned in December 2013 by the top court, which asked Parliament to bring a law if it wished to do so. Are view petition against the decision was dismissed, but a curative petition is pending in the Supreme Court. The top court said the latest petition raised larger issues that needed consideration.