A five-judge Constitution Bench of the Supreme Court will pronounce on September 6 the judgment on the constitutionality of Section 377 of the Indian Penal Code (IPC), a colonial era provision which criminalises private consensual sexual acts between same sex adults.
The Bench is led by Chief Justice of India Dipak Misra and comprises Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra .
There will be two opinions for the Bench. They will be authored by Chief Justice Misra and Justice Chandrachud.
The judgment would be the first of the several major judgments, including Aadhaar, Sabarimala women entry ban, etc., waiting to be pronounced by various Constitution Benches led by Chief Justice Misra, who is retiring on October 2.
The Constitution Bench hearing in the Section 377 case began on July 10, with Justice Chandrachud orally observing that a person’s choice of a partner is a fundamental right to life, and a ‘partner’ includes same sex partner.
The judgment comes on a batch of petitions, including the lead one filed by hotelier Keshav Suri, arguing that the right to sexual orientation is meaningless without the right to choose a partner. Section 377 criminalises a section of people for being a sexual minority.
The Constitution Bench judgment will decide whether the December 2013 verdict of the court in the Suresh Koushal case, which upheld Section 377 and dismissed the LGBT (lesbian, gay, bisexual, and transgender) community as a negligible part of the population while virtually denying them the right of choice and sexual orientation, will prevail or not.
The initial days of the Constitution Bench hearings saw the Bench debating whether it should travel beyond the topic of sexual orientation and examine the wider concept of ‘’sexuality’ to include co-habitation, etc. But Chief Justice Misra finally observed that the Bench should first decide the question of the constitutionality of Section 377.
The court had discussed whether what was perceived as against the “order of nature” in 1860 – the year the IPC was framed – was still so in 2018. Justice Nariman had wondered whether LGBT itself was an “order of nature”.
Senior advocate Mukul Rohatgi, for Mr. Suri, had argued that “everything changes with the passage of time… Laws made 50 years can become invalid over time”. He pointed out that Section 377 fell under the ‘Unnatural Offences’ chapter in the IPC. “What is unnatural? It can be between a man and man and also between a man and a woman. Sex done even between a man and woman, but not in the “conventional” way, also becomes unnatural under 377,” he interpreted.
The court heard arguments about how history has changed its view on homosexuality from pathological prejudice to a “normal and benign variation of human sexuality”.
Justice Malhotra had reacted that homosexuality was not confined to humans but extended to the animal kingdom too.
In the hearing, the government chose to remain neutral on the legality of Section 377, leaving the decision entirely to the wisdom of the Supreme Court.
However, the government’s neutrality came with a rider that the court should clarify that the freedom to choose a partner does not extend to perversions like incest.
“My choice of partner should not be my sister... That is prohibited under the Hindu marriage law. Allowing the choice of a partner should not extend to incest... sado-masochism...,” Additional Solicitor General Tushar Mehta had voiced the government’s apprehensions to the Constitution Bench.
To this, Justice Chandrachud had replied that the Bench is not sitting to adjudicate over any “kinky notions” of sexual orientation.
