SC to re­view its order which de­crim­i­nalised gay sex

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NEW DELHI: The Supreme Court on Mon­day re­ferred to a larger bench a plea seek­ing de­crim­i­nal­i­sa­tion of gay sex be­tween two con­sent­ing adults.

A bench com­pris­ing Chief Jus­tice Di­pak Misra and Jus­tices A M Khan­wilkar and D Y Chan­drachud said the is­sue aris­ing out of sec­tion 377 of the In­dian Pe­nal Code (IPC) re­quired to be de­bated upon by a larger bench.

Sec­tion 377 of the IPC refers to 'un­nat­u­ral of­fences' and says who­ever vol­un­tar­ily has car­nal in­ter­course against the order of na­ture with any man, woman or an­i­mal, shall be pun­ished with im­pris­on­ment for life, or with im­pris­on­ment of ei­ther de­scrip­tion for a term which may ex­tend to ten years, and shall also be li­able to pay a fine.

The bench was hear- ing a fresh plea filed by one Navtej Singh Johar seek­ing to de­clare sec­tion 377 as un­con­sti­tu­tional to the ex­tent that it pro­vides prose­cu­tion of adults for in­dulging in con­sen­sual gay sex.

Se­nior ad­vo­cate Arvind Datar, ap­pear­ing for Johar, said the pe­nal pro­vi­sion was un­con­sti­tu­tional as it also pro­vided prose­cu­tion and sen­tenc­ing of con­sent­ing adults who are in­dulging in such sex.

NEW DELHI: The le­gal fra­ter­nity on Mon­day said the Supreme Court’s de­ci­sion to re­fer to its Con­sti­tu­tion Bench the plea seek­ing to de­crim­i­nalise the ar­chaic pe­nal pro­vi­sion re­lat­ing to gay sex was a pos­i­tive move and has ut­most so­cial and le­gal sig­nif­i­cance.

The le­gal luminaries called for a to­tal over­haul of the 1869 In­dian Pe­nal Code, and said the apex court’s 2013 de­ci­sion over­turn­ing the Delhi High Court ver­dict de­crim­i­nal­is­ing sec­tion 377 of IPC re­quires re­con­sid­er­a­tion.

Se­nior ad­vo­cates Ra­jeev Dha­van, Dushyant Dave, Anand Grover, Colin Gon­salves and lawyer Kamini Jaiswal were unan­i­mous in wel­com­ing on Mon­day’s order of the bench com­pris­ing Chief Jus­tice Di­pak Misra and Jus­tices A M Khan­wilkar and D Y Chan­drachud.

Dha­van and Dave crit­i­cised the apex court’s 2013 ver­dict declar­ing the IPC pro­vi­sion pe­nal­is­ing gay sex as con­sti­tu­tional and said the two-judge bench seemed to have taken “an un­war­ranted view” which “re­quires a se­ri­ous re­con­sid­er­a­tion” of the ar­chaic law.

Jaiswal, Gon­salves and Grover said it was high time that the 2013 judge­ment was re­vis­ited. They said the apex court has cor­rectly placed the matter be­fore the five-judge con­sti­tu­tion bench, which is hear­ing a cu­ra­tive pe­ti­tion against the SC order, and it will be ea­gerly seen what they are go­ing to do.

Dave said: “It’s quite re­fresh­ing to see a pos­i­tive stand in the matter. The judge­ment of the apex court declar­ing 377 to be in­tra vires re­ally re­quires se­ri­ous re­con­sid­er­a­tion. This pro­vi­sion it­self, on the face of it, is ar­chaic and wholly un­con­sti­tu­tional. No­body can sup­port it un­der any cir­cum­stances. “The judge­ment of the Supreme Court was, in fact, quite sur­pris­ing, and I would say it was quite ortho­dox not in tune with the chang­ing times,” he said.

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