New Delhi: The Supreme Court is likely to pronounce its verdict today on a batch of pleas challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC) that criminalises consensual gay sex. The top court would decide whether the 158-year-old colonial law which criminalises same-sex relation should be struck down or not.
A five-judge Constitution bench, headed by Chief Justice of India (CJI) Dipak Misra and also comprising of Justices D. Y. Chandrachud, Rohinton Fali Nariman, A. M. Khanwilkar, had reserved the order on pleas seeking scrapping of Section 377 on July 17.
It had asserted that it will not wait for a “majoritarian government” to decide on enacting, amending or striking down a law that tends to violate the fundamental rights.
SC said that the courts are not obliged to wait and would act if any violation of fundamental right was brought before it.
In the earlier hearing, the government had left it to the apex court to test the constitutional validity of section 377, urging that issues like gay marriages, adoption and ancillary civil rights of LGBTQ should not be dealt by it. “We leave the validity of Section 377, so far as it relates to consensual acts between two adults, to the wisdom of the Hon’ble Court,” said Additional Solicitor General Tushar Mehta, who argued for the Centre.
It had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.
Taking note of the Centre’s submission that other issues like gay marriages, adoption and ancillary civil rights of LGBTQ community should not be dealt, the court said it was not considering all these issues.
The apex court heard the writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs. They have sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring section 377 of IPC as illegal and unconstitutional.
The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi High Court which had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as “illegal”.
This high court judgement was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.
The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre’s plea seeking postponement of the proceedings by four weeks.
At the outset of the hearing, the five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.
The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal.
Kaushal had also challenged the 2009 verdict of the high court in the apex court which had restored section 377 of IPC.
Section 377 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 10 years, and shall also be liable to pay a fine.