section 377

Supreme Court to reconsider validity of Section 377 that criminalises ‘unnatural sex’

No individual who exercises his or her choice should remain in a state of fear, the court said, adding that a larger bench will now hear the matter.

The Supreme Court on Monday said it would revisit the constitutional validity of Section 377 of the Indian Penal Code. The matter will now be referred to a larger bench.

Dating back to the 1800s, Section 377 criminalises anal and oral sex, referring to it as “unnatural sex”, and states that it is “against the order of nature with any man, woman or animal”. It also includes a maximum punishment of life imprisonment.

The three-judge bench of the Supreme Court made the decision after hearing a petition filed by five members of the lesbian, gay, bisexual and transgender community. The court asked the Centre to reply to the plea. The petitioners said they lived in constant fear of being penalised by the police because of their sexual orientation.

“A section of people or individuals who exercise their choice should never remain in a state of fear,” the bench headed by Chief Justice of India Dipak Misra said, according to the Hindustan Times. “Choice cannot be allowed to cross boundaries of law, but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of the Constitution.”

In 2013, a two-judge bench had set aside the Delhi High Court’s 2009 judgment to decriminalise homosexuality.

Former Solicitor General Harish Salve said the judgment will soon be struck down. “Section 377 is dead after the nine-judge bench said that all these are dimensions of Right to Privacy. It will formally be struck down. It will be done very soon.”

This is not the first time the Supreme Court has said it wants to revisit its judgement.

In 2016, a three-judge bench of then Chief Justice TS Thakur, Justice Anil R Dave and Justice JS Khehar had referred a batch of curative petitions against Section 377 to a five-judge Constitution Bench that was to be set up soon, The Hindu reported. However, the bench was never constituted.

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