NEW DELHI: The Supreme Court on Monday asked the Centre to clear its stand on the constitutional validity of Indian Penal Code Section 377 that criminalises ‘unnatural sex’ between two consenting adults and provides for their prosecution.A three-judge bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud gave a week’s time to Additional Solicitor General Tushar Mehta to file the reply before the Constitution bench takes up the matter.
Appearing for hotelier Keshav Suri who has moved the apex court seeking quashing of Section 377, senior counsel Mukul Rohatgi submitted that this matter might be tagged with a bunch of petitions to be heard by a Constitution bench.Rohtagi told the court that though the matter is to be heard in about two weeks’ time, the Centre has not spelt out its stand on the constitutionality of this provision.
A two-judge SC bench had earlier upheld this provision, but the matter has been referred to a five-judge Constitution bench.Previously too, the Centre did not take a categorical stand on the validity or otherwise of Section 377 and left it to the Supreme Court to decide.
In his petition, Suri pleaded that the ‘right to choice of sexual orientation’ be declared as part of the Fundamental Right to Life and Personal Liberty under Article 21 of the Constitution. He argued that after the nine-judge bench verdict holding Right to Privacy is a fundamental right; Section 377 cannot be construed as a “reasonable restriction” as that has the potentiality to destroy individual autonomy and sexual orientation.