Breaking: Supreme Court to reconsider Koushal, issues notice in challenge to Section 377

In a major development, the Supreme Court today said that it will reconsider its 2013 judgment in Suresh Kumar Koushal, wherein it had upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalises homosexuality..In a 2016 petition filed by five persons challenging Section 377, the Court issued notice to the Centre and referred the matter to a larger Bench. Senior Advocates Arvind Datar and Kapil Sibal, along with advocate Menaka Guruswamy, appeared for the petitioners..The matter, which came up as item 37 before the Bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, was heard for nearly half an hour, before the Court issued notice and referred the case to a larger Bench..Senior Advocate Arvind Datar submitted that though curative petitions against the Suresh Kumar Koushal verdict are pending before the Supreme Court, the challenge in those will be possible only on two narrow grounds..He argued that the Supreme Court judgment in Suresh Kumar Koushal places reliance on the fact that only a miniscule population is affected by the provision..“Civilisation has moved on. As far as the Delhi High Court judgment is concerned, it has held that there is no question of carnal intercourse being against the order of nature. Supreme Court overturned this on the ground that only a miniscule population is affected. .Your Lordships have to decide whether the Right to choose a partner is limited to partner of the opposite sex”, submitted Datar..Datar also placed reliance on the Right to Privacy judgment delivered by 9-judge Bench of the Supreme Court last year wherein it had expressed doubts about the correctness of the judgment in Suresh Kumar Koushal..Further, reliance was also placed on the NALSA judgment of the Supreme Court wherein Transgenders were recognised as third gender and gender identity and sexual orientation were identified..The Court in a lengthy order noted the submissions made by Datar before making it clear that its judgment in Suresh Kumar Koushal needs to be re-considered. Regarding Section 377, the Court noted the following:.“Section 377 IPC uses the phraseology “carnal intercourse against the order of nature”. The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place. The morality that public perceives, the Constitution may not conceive of. The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution. What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution. A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.”.It also noted Datar’s submissions that the challenge is only to the extent of penalising consenting sex between adults and not with respect to sex with animals or minors..“It is necessary to note, in the course of hearing on a query being made and Mr.Datar very fairly stated that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults. As far as the first aspect is concerned, that is absolutely beyond debate. As far as the second aspect is concerned, that needs to be debated. The consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected.”.The Court, then proceeded to refer the case to a Constitution Bench..“Taking all the aspects in a cumulative manner, we are of the view, the decision in Suresh Kumar Kaushal’s case (supra) requires re-consideration. As the question relates to constitutional issues, we think it appropriate to refer the matter to a larger Bench.”.A curative petition against the Supreme Court’s 2013 decision is already pending. The challenge to the constitutionality of the provision has assumed a new significance, in light of the views expressed by the nine-judge Bench in the Right to Privacy judgment. The Court, in that judgment, had observed,.“That “a miniscule 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. 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…”.Read the order below.