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Larger SC bench to decide if gay sex between adults should stay criminal

The Supreme Court. Picture by Prem Singh

New Delhi, Jan. 8 (PTI): The Supreme Court on Monday referred to a larger bench a plea seeking decriminalisation of gay sex between two consenting adults.

A bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said the issue arising out of section 377 of the Indian Penal Code required to be debated upon by a larger bench.

Section 377 of the IPC 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 ten years, and shall also be liable to pay a fine.

The bench was hearing a fresh plea filed by one Navtej Singh Johar seeking to declare section 377 as unconstitutional to the extent that it provides prosecution of adults for indulging in consensual gay sex.

Senior advocate Arvind Datar, appearing for Johar, said the penal provision was unconstitutional as it also provided prosecution and sentencing of consenting adults who are indulging in such sex.

”You can't put in jail two adults who are involved in consenting unnatural sex,” Datar said and referred to a recent nine-judge bench judgment in the privacy matter to highlight the point that the right to choose a sexual partner was part of fundamental right.

He also referred to the 2009 Delhi High Court judgment delivered on a plea of NGO 'Naz Foundation' in which the provision was held unconstitutional.

Subsequently, the apex court in 2014 had set aside the high court judgment and termed the provision as constitutional.

After the dismissal of the review plea against the 2014 judgment, a curative plea was filed which was referred to a larger bench.

The fresh plea of Johar and others will now also be heard by the larger bench.

Portrait of LGBT activist with equality demand during Queer Swabhimana Yatra 2017 on February 19,2017, in Hyderabad. Stock photo (Shutterstock)

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