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Updated: Jan 08, 2018 20:35 IST

The Supreme Court said on Monday it will revisit its 2013 verdict upholding Section 377 of the Indian Penal Code that bans homosexual sexual acts, and referred a petition against the controversial colonial law to a larger bench.

A three-judge bench of the SC led by Chief Justice Dipak Misra said the 2013 judgment, which overturned a 2009 Delhi high court verdict that decriminalised consensual same-sex acts, was guided by the perception of majority and concept of social morality.

“Concept of consensual sex may have more priority than a group right and may require more protection. A section of people or individual who exercise their choice should never live in a state of fear,” the court said.

“What is natural to one may not be natural to the other.”

The petition, which challenges the legal validity of Section 377 on the ground that it is not a reasonable restriction because the law has the potential to destroy an individual’s choice and sexual orientation, was filed by five prominent members of the Lesbian, Gay, Bisexual, Transgender (LGBT) community.

“The determination of order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly change takes place,” the SC said, asking the petitioners to provide a copy of the petition to the central government’s office so that the Centre can be represented in the case.

Read | SC refers Article 377 to larger bench: A timeline of legality of homosexuality in India

The petitioners – bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra – had said they lived in fear because of Section 377 and the 2013 judgment ignored harassment and problems arising out of the law.

“It is a small victory but it has brought back some hope, for the first time. I am very happy about the development and have full faith in the court, the judiciary system and the Constitution,” Dalmia told Hindustan Times. “I think it (repealing of Section 377) is just a matter of time now.”

Section 377 punishes “carnal intercourse against the order of nature with man, woman or animal” with life imprisonment, though formal prosecution is rare. But activists allege the law forces LGBT people to live in fear and face blackmail, intimidation and pervasive discrimination.

The court noted it will not judge that portion of the law that criminalises intercourse with an animal. It also specified the discussion would be restricted to consenting adults so that children remain protected. “Consent between two adults has to be primary pre-condition otherwise children would become prey, which the constitution does not allow. Protection of children in all spheres has to be guided,” it said.

In 2009, Section 377 was read down by the Delhi high court, which decriminalised consensual adult same-sex relationships. But this was overturned in December 2013 by the top court, which asked Parliament to bring a law.

A two-judge bench headed by justice GS Singhvi had said “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”.

A review petition against the decision was dismissed but a curative petition, the last available judicial recourse against an apex court decision, is pending in the SC. The top court has said that the curative will be decided on the limited grounds as raised in the petition. But the petition by the eminent LGBT personalities raised larger issues that needed consideration, it added.

Monday’s order holds out hope for LGBT activists as arguments in the case will be heard afresh and petitioners can draw support from last August’s right to privacy judgment that had upheld the right to sexual orientation and choice of sexual partners. A nine-judge bench of the court had observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.”

The CJI’s bench said natural and sexual orientation and choice could not be allowed to cross the boundaries of law. “But the confines of law cannot trample or curtail the inherent right embedded in an individual under article 21 (right to dignity),” the top court added.

While the court noted that Section 377 punishes “carnal intercourse against order of nature”, 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.”

First Published: Jan 08, 2018 13:20 IST</s>NEW DELHI — In a possible advance for gay rights in India, the Supreme Court ordered a review on Monday of Section 377, a colonial-era law reinstated in 2013 that criminalizes consensual sex between men.

Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay “should never remain in a state of fear,” and that “societal morality also changes from age to age.”

“Law copes with life and accordingly change takes place,” the court said.

The decision to revisit Section 377 comes after a landmark decision last August, when the Supreme Court ruled that all Indian citizens have a constitutional right to privacy. In the judgment, the court wrote that “sexual orientation is an essential attribute to privacy.”

Gay rights activists said they were elated by Monday’s decision, if still cautious.

“It’s about time that Section 377 is thrown out,” said Harish Iyer, a well-known activist. “We are a small number and we need to keep shouting.”</s>NEW DELHI — In a possible advance for gay rights in India, the Supreme Court ordered a review on Monday of Section 377, a colonial-era law reinstated in 2013 that criminalizes consensual sex between men.

Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay “should never remain in a state of fear,” and that “societal morality also changes from age to age.”

“Law copes with life and accordingly change takes place,” the court said.

The decision to revisit Section 377 comes after a landmark decision last August, when the Supreme Court ruled that all Indian citizens have a constitutional right to privacy. In the judgment, the court wrote that “sexual orientation is an essential attribute to privacy.”

Gay rights activists said they were elated by Monday’s decision, if still cautious.

“It’s about time that Section 377 is thrown out,” said Harish Iyer, a well-known activist. “We are a small number and we need to keep shouting.”

Introduced in 1861, Section 377 of the Indian Penal Code imposes a 10-year prison sentence on “carnal intercourse against the order of nature with man, woman or animal.” It most often applies to sex between men, but also extends to oral and non-vaginal sex of any kind. According to the privacy judgment, about 200 people have been prosecuted under Section 377.</s>The Supreme Court on Monday decided to reconsider the constitutional validity of Section 377 of the Indian Penal Code which has been used to de-criminalise homosexuality.

A bench headed by Chief Justice Dipak Misra and comprising of Justice AM Khanwilkar and Justice DY Chandrachud decided to re-examine the top court's earlier order upholding section 377 of the Indian Penal Code. "Our earlier order needs to be reconsidered," said Justice Misra on Monday.

The petition in the present case was moved by five people who belong to the gay community, reported CNN-News18. They have argued that they are affected by the judgment and since the Supreme Court has itself declared the Right to Privacy a Fundamental Right, they cannot be denied their right to sexual privacy. They said that they live in fear of the police because of their natural sexual preferences. The petitioners also argued that most nations have decriminalised homosexuality and India should not lag behind on the issue.

The petition requires the Supreme Court to reconsider its 2013 judgment in Suresh Kumar Kaushal versus Naz Foundation which upheld the legalities of Section 377. The judgment had struck down the Delhi High Court judgment decriminalising homosexuality. The court said that the confines of law cannot trample on right to life and liberty, people who exercise their choice should not live in fear, according to NDTV. While referring the matter to a larger bench the court observed "what is natural to one may not be natural to others".

The court has also asked the Centre for its stance on the issue. This makes matters interesting as none of the political parties have stuck their head out on homosexuality, said CNN-News18. The right-wing BJP will now have to make clear its stance on the issue.

Further, since a law has been challenged in the present case, the court said that it would be appropriate to form a constitution bench to look into the matter, according to CNN-News18. It is expected that the matter will be heard along with the curative petitions in the Naz Foundation case and the case should come up for hearing after four weeks, though a concrete date has not yet been decided.

The story so far

In 2001, Lawyers Collective, on behalf of the Naz Foundation had filed a writ petition in the Delhi High Court in 2001, challenging the constitutionality of section 377 on the grounds that the draconian law grossly violates the right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. A notice was issued to Union of India in 2002 and the Attorney General was asked to appear. In 2004, the petition was dismissed by the High Court (citing lack of action). A review petition was then filed against the dismissal, which ironically was dismissed too and then after a Special Leave to Appeal was filed in 2005, a year later the Supreme Court said, "the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated."

In 2009, the Delhi High Court, much to the relief of the LGBTQI community passed a judgement that Section 377 indeed was violative of Articles 21, 14 and 15 of the Constitution as it criminalised the consensual sexual acts of adults in private.

Before India could take its first steps towards progress however, the Supreme Court quashed Delhi High Court judgement in 2013 and declared that it was a judicial overreach and that it was not "for courts to create the law" according to the two-judge bench headed by Justice GS Singhvi. The Supreme Court backed out, but passed the ball to the Parliament to review a law that considered private sexual activity criminal.

When the nine-judge bench of the Supreme Court declared privacy a Fundamental Right, it invited much cheer from many sections of the society, including the LGBT (Lesbian, Gay, Bisexual and Transgender) community in India.

In its landmark judgment, the Supreme Court said that "sexual orientation is 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," it said. The 547- page judgement also added that the Right to Privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by articles 14, 15 and 21 of the Constitution.

Justice DY Chandrachud, one of the nine judges, said, "Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone."

"LGBT rights cannot be dismissed as so-called rights," CNN-News18 had quoted the apex court as saying.</s>NEW DELHI (NYTIMES) - In a possible advance for gay rights in India, the Supreme Court ordered a review of Section 377, a colonial-era law reinstated in 2013 that criminalises consensual sex between men.

Responding to a petition filed by members of the gay, bisexual and transgender community who said they felt persecuted for their sexual orientation, a three-person bench of judges on Monday (Jan 8) referred Section 377 to a larger bench for reconsideration, noting that Indians who are gay "should never remain in a state of fear," and that "societal morality also changes from age to age."

The decision to revisit Section 377 comes after a landmark decision in August 2017, when the Supreme Court ruled that all Indian citizens have a constitutional right to privacy.

In the judgment, the court wrote that "sexual orientation is an essential attribute to privacy."

Gay rights activists said they were elated by Monday's decision, if still cautious.

Introduced in 1861, Section 377 of the Indian Penal Code imposes a 10-year prison sentence on "carnal intercourse against the order of nature with man, woman or animal."

It most often applies to sex between men, but also extends to oral and non-vaginal sex of any kind.

The push to strike down the law gained momentum in 2001, when Anjali Gopalan, executive director of the Naz Foundation, an AIDS awareness group, filed a lawsuit challenging it.

In a major victory, the highest court in New Delhi, the capital, ruled in 2009 that Section 377 was unconstitutional.

With Monday's decision, Anand Grover, a lawyer leading the push to invalidate the law, said a new verdict could be reached in the first half of this year.

"I'm in high spirits," he said. "I always look at things in a positive manner and this is more than positive."

Reacting to the Supreme Court decision, Subramanian Swamy, a prominent member of Parliament with the governing Bharatiya Janata Party, told Asian News International, an Indian news network, that homosexuality was not a problem as long as people "don't celebrate it, don't flaunt it, don't create gay bars to select partners."

He said Section 377 was still necessary. "If you flaunt it," he said, "it has to be punished."</s>In what gay activists are seeing as a major boost in their fight for repealing of a contentious law that makes consensual sexual acts punishable under law, the Supreme Court today said that there was need to revisit the top court’s own verdict of 2013 that upheld the constitutional validity of Section 377 of the Indian Penal Code.

In 2013, the Supreme Court had turned down a verdict of the Delhi High Court that read down Section 377 as violative of Articles 21, 14 and 15 of the Constitution. Upholding the validity of Section 377, a Supreme Court bench of Justice GS Singhvi and SK Mukhopdhaya observed that since only a “minuscule fraction of the country’s population” was affected by the issue, it was not sound enough basis to strike down a penal provision on grounds of discrimination.

The top court’s decision on Monday to reopen the debate on Section 377 and criminalisation of consensual gay sex finds its genesis in the landmark 2017 verdict in the Right To Privacy case by a nine-judge bench of the top court.

A look at the observations of the top court with respect to its own 2013 order underlined the court’s intent to have a relook at the contentious provision. In a detailed examination of the 2013 verdict of the top court, Justice J Chandrachud’s opinion in the Right to Privacy case, also signed by the then Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, hinted at where the SC had erred in its judgment striking down the High Court order of 2009.

Here is what Justice Chandrachud opined in the Right To Privacy judgement:

“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 purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.

Read Also: Gay sex debate: SC refers plea against section 377 of IPC seeking decriminalisation of homosexuality to larger bench

“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is 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.

“Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

Justice Chandrachud then goes on to further examine Justice Singhvi’s 2013 decision, referred to as “Koushal”, based on the full title of the case, ‘Suresh Kumar Koushal vs Naz foundation.’

“The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT. persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

Noting that the challenge to Section 377 is pending consideration before a larger SC bench, the order leaves its constitutional validity to be decided in an appropriate proceeding.

“The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.

“The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.”</s>New Delhi: The Supreme Court on Monday agreed to revisit its 2013 ruling criminalizing consensual sex between same sex adults, clearing the way for a fresh round of debate on a controversial colonial-era law governing homosexuality in India.

This follows the apex court’s August judgement which held privacy to be a fundamental right, extending its scope to the sexual orientation of a person as an essential attribute.

A three-judge bench comprising Chief Justice Dipak Misra and justices D.Y. Chandrachud and A.M. Khanwilkar, in response to a plea by representatives of the lesbian, gay, bisexual and transgender (LGBT) community, agreed that there was a need to consider the implication of the privacy judgement on the issue and take another look at the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalizes same sex intercourse, even when it is consensual and between adults.

Misra observed that the question for consideration was that of sexual orientation and individual autonomy, framing the debate within the parameters of the right to life guaranteed by Article 21 of the Constitution.

“What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilized society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test,” the nine-page order said.

The court held that a review of the 2013 ruling and constitutional validity of Section 377 would be considered by a larger bench that is still to be constituted.

A fresh challenge to the 2013 ruling was brought to the apex court by a group of five prominent representatives of the LGBT community —Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur.

On 24 August, a nine-judge bench of the apex court held privacy to be a fundamental right, sparking a fresh debate regarding its impact on the decriminalization of homosexuality.

In December 2013, a division bench of the Supreme Court overturned a 2009 high court verdict that had set aside the 1860 law and decriminalized consensual sex among adult homosexual men.

The apex court is also considering a curative petition filed by Naz Foundation Trust, the non-governmental organization that had originally filed a lawsuit in the Delhi high court in 2001. In 2009, the high court had ruled that Section 377 of the IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.

The curative petition filed before the top court argues that the court has incorrectly held that a “minuscule fraction of population cannot claim fundamental rights”. The petition also alleged an issue bias by the court against the LGBT community through its references, such as “the so-called rights of LGBT persons” in its 2013 judgement.</s>ABOVE: India’s Supreme Court on Jan. 8, 2018, said it would reconsider its controversial 2013 ruling that recriminalized consensual same-sex sexual acts in the country.

The India Supreme Court on Monday said it would reconsider its controversial 2013 ruling that recriminalized consensual same-sex sexual relations.

The Hindustan Times reported Chief Justice Dipak Misra and two other judges said the decision on Section 377 of the Indian Penal Code was based on what it described as “the perception of majority and concept of social morality.”

“Concept of consensual sex may have more priority than a group right and may require more protection,” said the judges, according to the Hindustan Times. “A section of people or individual who exercise their choice should never live in a state of fear.”

The Delhi High Court in 2009 struck down the country’s colonial-era sodomy law. The Supreme Court’s 2013 ruling overturned it.

Indian lawmakers in late 2015 rejected a bill that would have repealed Section 377.

India is among the more than 70 countries around the world in which consensual same-sex sexual relations remain criminalized.

The Supreme Court last August issued a landmark privacy ruling that advocates said would have an impact on efforts to repeal Section 377.

A 2014 ruling recognized transgender Indians and hijras and eunuchs — those who do not identify as male or female — as a “third gender.” The Supreme Court decision also directed India’s federal government and its agencies and state officials to fight discrimination based on gender identity and include trans people in state-run programs.</s>The Supreme Court of India agreed Monday to review a 2013 ruling that had declared homosexuality illegal in the country.

A three-judge bench ordered a review of the constitutional validity of Section 377 of the Indian Penal Code, which criminalizes gay sex and said people should not have to live in fear over their sexual preferences.</s>The Supreme Court will reconsider the Constitutional validity of Section 377. A 3-judge bench of Supreme Court on Monday said that it will re-examine its verdict upholding Section 377 of the Indian Penal Code (IPC) that criminalises gay sex. The Supreme Court showed concern to a writ petition filed by members of the LGBT community who raised the issue that they live in fear of police because of their natural sexual preferences. The Supreme Court while speaking on the matter issued a notice to the Centre seeking a response on a writ petition filed by LGBT community members.

One of the LGBT activist Akkai following Supreme Court’s observations said, “We need to welcome it. We still have hope from Indian judiciary. We are living in the 21st century. All politicians and political parties must break their silence and support individual’s sexuality. Speaking after Supreme Court’s saying that it will reconsider the constitutional validity of section 377, All Indian Mahila Congres President Sushmita Dev said, “Congress welcomes Supreme Court’s decision. Everybody has equal right to live life the way they want.”

Supreme Court bench headed by Chief Justice (CJI) Dipak Misra decided to re-examine the top court’s earlier order upholding section 377 of the Indian Penal Code. “Our earlier order needs to be reconsidered,” said Justice Misra. Supreme Court’s order has come following a petition by individuals holding that IPC section 377 was “violative of fundamental rights under Article 14 (right to equality) and Article 21 (right to life)”. The top court has decided to reconsider the constitutional validity of section 377 after it had overruled a Delhi High Court order when it decriminalized homosexuality by overturning the colonial-era law.
The Supreme Court of India orders a review of Section 377, a colonial-era law that criminalizes consensual sex between men, and of the Court's December 2013 verdict that upheld the law. In August 2017, the Supreme Court ruled that all Indian citizens have a constitutional right to privacy, noting in the judgment that "sexual orientation is an essential attribute to privacy."