[CA] SC sought Centre's help on Sec 377 of IPC

Well-known hotelier Keshav Suri, who runs the Lalit Group of hotels, approached the Supreme Court for decriminalising gay sex and to quash Section 377 of the Indian Penal Code that makes carnal intercourse a crime punishable with imprisonment of up to ten years. The court agreed to hear his plea and issued notice to the Centre.

Armed with recent verdicts of the apex court upholding the right of choice and right to privacy of citizens, the 33-year-old businessman, who claims to be in a committed relationship with a man, said the penal provision is discriminatory and there was no logic for declaring intercourse between two individuals of same sex as against the order of the nature.

Senior advocate Mukul Rohatgi, appearing for Suri, contended that a person’s right to choice of sexual orientation was part of fundamental rights guaranteed by the Constitution.

Rohatgi argued that Section 377 should not be invoked in case of any intercourse between two consenting adults of same sex. “Persons from lesbian, gay, bisexual, transgender and queer (LGBTQ) community are ridiculed in various spheres of life,” the petition said. “Equal work opportunities and pay is not given to individuals who have chosen their sexual orientation which is called ‘different’. The petitioner himself has suffered mentally and been stigmatised on account of his sexual orientation at personal and professional fronts. He had to deal with non-acceptance of his fundamental and intrinsic choice that is his homosexuality with his family and thereafter even professionally questions were raised about his sexuality, which does not normally happen with heterosexual individuals,” the petition said.

“In addition, the petitioner is constantly living under the fear of a false prosecution with Section 377 being on the statute book and the petitioner is unable to express his relationship and his right to choose his sexual partner without being worried. This is by no yardstick a life of dignity and respect,” it said. Agreeing to hear his plea, a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud sought response from the Centre within a week.

[CA] Sec 377 of IPC: SC refers to Constitutional Bench

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. The apex 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.

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.

            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.

Twenty-six nations — Australia, Malta, Germany, Finland, Colombia, Ireland, the U.S., Greenland, Scotland, Luxembourg, England and Wales, Brazil, France, New Zealand, Uruguay, Denmark, Argentina, Portugal, Iceland, Sweden, Norway, South Africa, Spain, Canada, Belgium, and the Netherlands — have decriminalised gay sex.