The Supreme Court of India on April 23, 2018 sought a response from the Central Government on pleas challenging the Indian Penal Code’s Section 377, which criminalises homosexuality.
The response was sought by a 3-judge bench comprising Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud on a plea by hotelier and LGBT activist Kesav Suri.
The bench tagged Suri's plea with an earlier pending challenge to Section 377. Following this, senior counsel Mukul Rohatgi urged the court to ask the government to respond to the plea.
• The top court had said on January 8, 2018 that it will re-examine its 2013 verdict upholding Section 377 that criminalises gay sex.
• It observed that a section of people or individuals who exercise their choice should never remain in a state of fear.
• Referring the matter to a larger bench, the court had said: "Individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution."
• It further stated that the morality that public perceives, the Constitution may not conceive of, making it clear that the consent between two adults has to be the primary pre-condition.
• It said that otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected.
• The top court's January 8 order had come on a petition by Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others holding that Section 377 was "violative of fundamental rights under Article Article 21 (right to life)".
What is Section 377?
The section holds that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence.
Supreme Court’s 2013 order
• The apex court in its 2013 verdict overturned Delhi High Court's July 2, 2009 verdict that decriminalized consensual sex among adult homosexual men.
• The court held that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code is illegal and will continue to be an offence.
• It, however, stated that a competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it.
• In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.
• While the government did not appeal the high court decision, a challenge on the grounds of public morality was filed by groups of religious bodies and individuals, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.