Photograph: Danish Siddiqui/Reuters
The Supreme Court is likely to pronounce on Thursday its much-awaited verdict on a clutch of petitions seeking decriminalisation of a 158-year-old colonial law under Section 377 of the Indian Penal Code which criminalises consensual gay sex.
A five-judge constitution bench headed by Chief Justice Dipak Misra had reserved its verdict on July 17 after hearing various stakeholders for four days, including gay rights activists.
Besides the CJI, the bench also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
The apex court had asserted that courts cannot wait for a ‘majoritarian government’ to decide on enacting, amending or striking down a law if it violates fundamental rights.
It had made clear that it may not strike down the law completely and deal with it to the extent it relates to consensual acts between two adults.
“If Section 377 of the IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent,” the top court had said, while allaying apprehensions of those opposed to the decriminalisation of the penal provision.
“We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights,” the bench had said while reserving its verdict.
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 Centre, which had initially sought adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of legality of the penal provision on the aspects of criminalising consensual unnatural sex between two consenting adults.
It had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.
The apex court heard the writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.
They have sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring section 377 of IPC as illegal and unconstitutional.
The issue was first raised by NGO Naaz Foundation, which had in 2001 approached the Delhi high court which had in 2009 decriminalised sex between consenting adults of the same gender by holding the penal provision as ‘illegal’.
This high court judgment was overturned in 2013 by the apex court which also dismissed the review plea against which the curative petitions were filed which are pending.
The top court had commenced hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre's plea seeking postponement of the proceedings by four weeks.
At the outset of the hearing, the five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on the fresh writ petitions in the matter.
The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Kaushal.
Kaushal had also challenged the 2009 verdict of the high court in the apex court which had restored section 377 of IPC.