The Supreme Court on Monday referred Section 377 of the Indian Penal Code that criminalises homosexuality to a larger bench of the court, saying a 2013 judgment that upheld the colonial law needed consideration.
Hearing a petition by members of the Lesbian, Gay, Bisexual and Transgender (LGBT) community, a three-judge bench headed by Chief Justice Dipak Misra said the petitioners had raised larger issues of “privacy, equality, dignity and expression”.
“A section of people or individual who exercise their choice should never remain in state of fear,” the court said. “Taking all aspects in cumulative manner, we are of the view that earlier decision in the S K (Suresh Kumar) Koushal case requires reconsideration.”
Section 377 of IPC 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 10 years, and shall also be liable to fine.”
The law was read down by the Delhi high court to decriminalise consensual same-sex relationships in 2009 but the top court overturned the decision in 2013, asking Parliament to bring a law.
Monday’s decision came on a petition by five people from the LGBT community: Navtej Jauhar, Sunil Mehra, Aman Nath, Ritu Dalmia and Ayesha Kapoor.
“Choice cannot be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21 of Constitution,” the court said.
India is one of a handful of modern democracies that criminalises same-sex relationships and many members of the LGBT community live in fear of blackmail and social stigma. The law was repealed in Britain in the 1960s.
In August last year, the Supreme Court criticised Section 377 while upholding the right to privacy and called sexual orientation an essential attribute of privacy. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual,” a five-judge bench of the court had said.
The judgment had also attacked the reasoning of the 2013 decision, saying the protection of sexual orientation lay at the core of fundamental rights guaranteed by the Constitution.
“That ‘a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy,” the top court had said.