(Eds: Updating with reax, more quotes) New Delhi, Jan 8 (PTI) The Supreme Court today agreed toreconsider its 2013 verdict criminalising gay sex and referredto a larger bench the plea challenging the penal provision,observing the societal morality "changes from age to age."Giving a ray of hope to the gay, lesbian andtransgendered communities which are pushing for scrappingSection 377 of the IPC that criminalises homosexuality, thecourt decision moved a step towards a final judicial call onthe controversial provision that has been described as"archaic." Noting that the curative petition against its 2013judgement is pending before a five-judge Constitution bench,the apex court said the present petition will also be heard bythe same larger bench and that a finality could be attainedwhether gay sex between two consenting adults can bedecriminalised.
A bench comprising Chief Justice Dipak Misra and JusticesA M Khanwilkar and D Y Chandrachud gave the order, observingthat the judgement, upholding the constitutional validity ofSection 377 of the IPC needed to be debated upon.
As many as 26 nations -- Australia, Malta, Germany,Finland, Colombia, Ireland, United States, Greenland,Scotland, Luxembourg, England and Wales, Brazil, France, NewZealand, Uruguay, Denmark, Argentina, Portugal, Iceland,Sweden, Norway, South Africa, Spain, Canada, Belgium,Netherlands -- have decriminalised gay sex.
The apex court, in its 2013 judgement, had said"minuscule fraction of the country's population constitutesLGBT is not a sustainable basis to deny the right to privacy.
The purpose of elevating certain rights to the stature ofguaranteed fundamental rights is to insulate their exercisefrom the disdain of majorities, whether legislative orpopular...". It had overturned the Delhi High Court verdictdecriminalising gay sex among consenting adults.
Legal experts like Rajiv Dhawan, Colin Gonsalves, AnandGrover, Dushyant Dave and Kamini Jaiswal welcomed the order.
They said the matter is of utmost social and legalsignificance and a positive move has been initiated by theapex court for a re-look into the earlier judgement which,according to them, required reconsideration.
"It's quite refreshing to see a positive stand in thematter. The judgement of the apex court declaring 377 to beintra vires really requires a serious reconsideration.
This provision itself on the face of it is archaic and it iswholly unconstitutional. Nobody can support it under anycircumstances," Dave said.
Section 377 of the IPC refers to 'unnatural offences' andsays whoever voluntarily has carnal interÂcourse against theorder of nature with any man, woman or animal, shall bepunished with imprisonment for life, or with imprisonment ofeither description for a term which may extend to ten years,and shall also be liable to pay a fine.
"Section 377 uses phraseology 'carnal intercourse againstthe order of the nature'. The determination of order of thenature is not a Constitutional phenomenon and societalmorality also changes from age to age," the bench said whilereferring the petition filed by celebrities including chefRitu Dalmia, hotelier Aman Nath and dancer N S Johar to alarger bench.
It, however, made a distinction that the penal provision,which also deals with such carnal sex involving animals andchildren will not be dealt by the larger bench.
"The consent of two adults has to be the primaryconsideration and otherwise children will become the prey. Theprotection of children in all sphere has to be guarded," thebench said, adding that the CJI, in his administrative side,will decide on setting up of the larger bench.
The bench also directed that the copy of the petitionfiled by members of Lesbian, Gay, Bisexual and Transgender(LGBT) community, be served on the Union Ministry of Law andJustice to ensure proper representation.
During the hearing, the court considered the submissionos senior advocates Arvind Datar and Kapil Sibal and said thatit appeared that the penal provision hurt sexual preferencesof individuals.
Datar said that the provision is unconstitutional as itprovided prosecution and sentencing of consenting adults whoare indulging in such sex.
"You can't put in jail two adults who are involved inconsenting unnatural sex," he said while referring to a recentnine-judge bench judgement in the privacy matter to highlightthe point that the right to choose a sexual partner was partof fundamental right.
The bench, in its order, also referred to the privacyjudgement and terms like social and constitutional morality,individual choices of sexual preferences and said that the lawmust have the sanction of the Constitution.
Datar submitted that though curative petitions againstthe 2013 Suresh Kumar Koushal verdict are pending before theSupreme Court, the challenge in those will be possible only ontwo narrow grounds.
"Civilisation has moved on. As far as the Delhi HighCourt judgement is concerned, it has held that there is noquestion of carnal intercourse being against the order ofnature. the Supreme Court overturned this on the ground thatonly a minuscule population is affected. The apex court has todecide whether the Right to choose a partner is limited topartner of the opposite sex," Datar said.
The bench said that the challenge was only to the extentof penalising consenting sex between adults and not withrespect to sex with animals or minors.
Datar also referred to the 2009 Delhi High Courtjudgement delivered on a plea of NGO 'Naz Foundation' in whichthe provision was held unconstitutional.
Naz Foundation had filed a petition in December 2001 inthe High Court, which had on July 2, 2009, decriminalisedSection 377.
After refusing twice to entertain the pleas againstSection 377, the SC on February 2, 2016 referred theissue to a five-judge bench.
The apex court had earlier dismissed a batch of reviewpetitions filed by the Centre and gay rights activists againstits December 2013 verdict declaring gay sex an offencepunishable up to life imprisonment.
It had revived the penal provision making gay sex anoffence punishable with life term.
While setting aside the July 2, 2009 verdict of DelhiHigh Court, the apex court had held that Section 377 of IPCdoes not suffer from the vice of unconstitutionality and thatthe declaration made by high court was legally unsustainable.
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This is unedited, unformatted feed from the Press Trust of India wire.
