SC agrees to examine correctness of 2013 verdict criminalising homosexuality

New Delhi: The Supreme Court on Tuesday agreed to examine the correctness of its 2013 verdict that had set aside the Delhi High Court's judgement decriminalising gay sex. A newly re-constituted five-judge bench headed by Chief Justice Dipak Misra has been posted for hearing the petitions seeking the scrapping of Section 377 of IPC which criminalizes homosexuality.

The Constitution bench of the top court today commenced the crucial hearing on a clutch of pleas challenging Section 377 of the Indian Penal Court (IPC) which re-criminalisation of consensual gay sex between two adults, rejecting the Centre's plea seeking postponement of the proceedings. The bench also comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

During the hearing, the bench said it would examine the constitutional validity of section 377 of the IPC and the fundamental rights of the LGBTQ (Lesbians, Gay, Bisexual, Transgender, Queer) community.

The hearing began with senior advocate Mukul Rohatgi, appearing for dancer Navtej Jauhar, one of the petitioners, telling the court that the right to have sexual freedom should be examined in view of the nine-judge bench verdict on privacy which was delivered on August 24, 2017.

In the judgement on privacy as a fundamental right, the apex court's nine-judge bench had said the right to privacy cannot be denied to members of the LGBT community merely because they have unconventional sexual orientation and form a minuscule fraction of the over 1.32 billion Indian population.

The bench, which agreed with the submission of Rohatgi, also said it would examine the fundamental right to life and sexual freedom. In the writ petitions too, there is a challenge to the 2013 judgement of the apex court by which homosexuality was held as a criminal offence.

Section 377 refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. 

The apex court had in 2013 had restored the criminality of the sexual relationship between persons of the same sex, after the Delhi High Court' had decriminalised it in 2009.

(With inputs from PTI)