Apex court to revisit homosexuality law
NEW HOPE SC will reexamine verdict that reinstated Section 377, making samesex relationships a criminal offence
NEWDELHI: The Supreme Court on Monday said it would revisit its 2013 verdict upholding Section 377 of the Indian Penal Code that criminalises 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 decriminalised homosexual relationships between consenting adults, was guided by the perception of majority and concept of social morality. “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 on the grounds that the law has the potential to destroy an individual’s choice and sexual orientation, was filed by five members of the Lesbian, Gay, Bisexual, Tran-sgender (LGBT) 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 – Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur, and mediaperson Sunil Mehra – said they lived in fear because of Section 377 and 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 petitioners can draw support from last August’s right to privacy judgment that spoke of the right to sexual orientation and choice of sexual partners. A nine-judge 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 criminalise 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 It was repealed in England and Wales in 1967.“This is a small victory but it has brought back some hope, for the first time.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,” Dalmia said. “I think it (repealing of Section 377) is just a matter of time now.”