SC to review its order which decriminalised gay sex

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.