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

Published on 08 Jan 2018 by Team

Image courtesy- Barandbench

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 Koushalneeds to be re-considered.

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.

The Court recorded the same and proceeded to ask Centre to enter appearance and referred 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"

Source- Barandbench

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