Supreme Court Agrees to Revisit Section 377

In June of 2016, some high-profile LGBT celebrities had petitioned the Supreme Court to quash section 377 , which criminalises homosexuality. In response to that, the Supreme Court has agreed to review Section 377 and referred the case to a larger Bench.

A five judge Bench is already considering a curative petition filed by Naz Foundation.

That petition was filed by chef Ritu Dalmia, hotelier Aman Nath and dancer N.S. Johar, who had  sought protection of their sexual rights on the ground that it is an integral part of the fundamental right to life.

The petition had said, “The petitioners are not seeking protection only as sexual minorities but recognition of characteristics that inhere to all human beings. A right to sexuality, sexual autonomy and freedom to choose a sexual partner forms the cornerstone of human dignity which is protected under Article 21 of the Constitution,”

The court noted the arguments of senior advocate Arvind Datar, who appeared for the petitioners, that Section 377 IPC is not a reasonable restriction on the fundamental right to choice.

Initially, the Bench seemed reluctant, because a five judge Bench is already considering a curative petition by Naz against 2013 verdict. Mr. Datar, however prevailed, saying while Naz is an NGO, he is representing petitioners. not the Naz foundation.

The three-judge Bench led by Chief Justice of India Dipak Misra decided to revisit its December 2013 verdict.

The apex court said a section of people cannot live in fear of the law which atrophies their right to choice and natural sexual inclinations. It said societal morality changes with time and law should walk and change pace with life.

It added that “the determination of order of nature is not a common phenomenon. Individual autonomy and individual natural inclination cannot be atrophied unless the restrictions are determined as reasonable.”

The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution.

“Right to choose my partner is part of my fundamental right to privacy,” Mr. Datar submitted.

“But the privacy judgment says sexual partner means a natural partner,” Chief Justice Misra countered.

“Who my ‘natural’ partner should be is my choice,” Mr. Datar responded.

Chief Justice Misra then said Section 377 also criminalises beastiality. “What about carnal intercourse with animals?” the CJI asked.

“We are not on that part. Our petition is only about criminalising consensual sex between adults of the same sex,” Mr. Datar replied.


The relook comes months after some judges on a nine-judge Constitution Bench, which had held Right to Privacy as a fundamental right, denounced discrimination on the basis of sexual orientation.





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