On Monday, The Supreme Court referred to a larger Bench a
writ petition filed by five petitioners to quash Section 377 of the Indian
Penal Code which criminalises homosexuality.
On Monday, the Supreme 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.
A three-judge Bench led by Chief Justice of India Dipak Misra decided to revisit its December 2013 verdict in Suresh Kumar Kaushal vs. Naz Foundation which dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation.
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."
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.
The court said the concept of consensual sex may require more protection. 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.
Its judgments emphasising the transgender identity in the NALSA case and the observations made by a nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warrant a relook into its dismissive verdict in the Naz case, said the court.
Initiallym the Bench seemed reluctant, saying 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 whose fundamental rights are directly affected by Section 377.
"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 court at one point observed that a provision cannot become unconstitutional purely because it is abused. The senior advocate argued that Section 377 has the potential to destroy individual choice and sexual orientation.
The petitioners include Navtej Singh Johar, a Sangeet Natak Akademi Award-winning Bharatnatyam dancer; Sunil Mehra who is a senior journalist; Ritu Dalmia who is a restaurateur and Aman Nath, an expert on Indian art, culture and the founder of the Neemrana chain of hotels.
"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 petition said.
The nine-judge Bench of the Supreme Court had in August 2017 ripped apart its 2013 judgment upholding Section 377.
The majority privacy judgment had observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”
In separate judgments, the Constitution Bench had concluded that the 2013 verdict by a two-judge Bench of the apex court pandered to a “majoritarian” view to turn down the LGBT community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.
The 2013 judgment's view that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” was not a sustainable basis to deny the right to privacy, Justice D.Y. Chandrachud had observed in his majority judgment.
“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,” Justice Chandrachud had observed.
Justice Sanjay Kishan Kaul, in his separate judgment, seconded Justice Chandrachud, while observing that the “majoritarian concept” does not apply to constitutional rights.
“Courts are often called up on to take what may be categorized as a non-majoritarian view... One's sexual orientation is undoubtedly an attribute of privacy,” Justice Kaul added.
Justice Chandrachud observed that the Supreme Court, without any constitutional basis, had set aside the historic Delhi High Court judgment of then Chief Justice A.P. Shah. The High Court had in 2010 found that Section 377 was a statutory provision targeting homosexuals as a class and amounted to a hostile discrimination on the ground of sexual orientation.
The Review Bench of the Supreme Court, in January 2014, had agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally accepted verdict of the Delhi High Court.
The pending curative petitions are the last stand in a decade-old fight by the LGBT community.