The Supreme Court on Monday referred to a five-judge constitution bench a challenge to a law that criminalizes all sexual activity other than consensual heterosexual intercourse, observing that society’s ideas of morality keep changing with time.
But the three-judge bench clarified that what would be under consideration for decriminalization was consensual (gay and lesbian) sex between adults – and not sex with children or animals.
“Societal morality changes from age to age. Law copes with life and accordingly, change takes place. The morality that the public perceives, the Constitution may not conceive of,” the bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said.
Delhi High Court had in 2009 decriminalized homosexual acts between consenting adults, quashing as unconstitutional a provision of the penal code’s Section 377, which punished any form of sex “against the order of nature” with jail up to a life term.
But a two-judge Supreme Court bench overturned the judgment in 2013, saying Parliament alone could change laws. A curative petition against the verdict, moved after a review petition was rejected, is pending with the top court.
However, in 2016, a group of gay rights activists challenged Section 377 afresh saying it violated homosexuals’ fundamental rights. It was on this the top court ruled on Monday.
Arguing for petitioner Navtej Jauhar and others, senior advocate Arvind Datar told the court that homosexuals lived under a constant fear of persecution in India.
He cited how the nine-judge bench that had last year declared privacy a fundamental right had observed that LGBT (lesbian, gay, bisexual and transgender) people’s right to their sexual orientation was part of their right to privacy. Justice Misra, after consulting Justice Chandrachud – who had authored the majority view within that nine-judge bench – said the matter needed reconsideration by a constitution bench. But he ruled out any relook at sex with children or animals.
“Consent between two adults has to be primary pre-condition, otherwise children would become prey, which the Constitution does not allow. The protection of children in all spheres has to be guided,” he said.
He added: “The concept of consensual sex may have more priority than a group right and may require more protection. A section of people or individuals who exercise their choice should never live in a state of fear.
“What is natural (to one person) may not be natural to the other… Sexual orientation and choice cannot be allowed to cross the boundaries of law, but the confines of law cannot trample (on) or curtail the inherent right embedded in an individual under Article 21 (protection of life and personal liberty).”
In its 2013 order, the apex court had said that LGBTs made up “a minuscule fraction” of the population and only a handful had been prosecuted under Section 377, so “this cannot be made a sound basis” for quashing the provision.
But the nine-judge order last year said: “That a minuscule 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.”
It added: “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 favorably regarded by majoritarian opinion.”