Larger SC bench to decide if gay sex between adults should stay criminal
In 2012, the Delhi High Court struck down Section 377 of IPC but it was set aside by the Supreme Court in the 2013 judgement on the grounds that it is the job of the legislature to do away with it, and it is not the job of the court to legislate.
The Supreme Court on Monday said it will re-examine its verdict upholding Section 377 of the IPC that criminalises gay sex. It is as yet unclear as to when the Constitution Bench will take up the matter.
The Supreme Court on Monday paved way for a fresh round of debate on its stand on homosexuality as it agreed to revisit its 2013 ruling that had set aside a law framed in 1860 which decriminalized consensual sex among adult homosexual men.
The court also referred the petition to a higher bench. They said that they live in fear of the police due to their natural sexual preferences.
The curative petition filed before the top court argues that the court has incorrectly held that a "minuscule fraction of population can not claim fundamental rights".
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"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 judgement in the privacy matter to highlight the point that the right to choose a sexual partner was part of fundamental right. The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment. The court had then out the ball in parliament's court, stating that the government was free to annul the law through a legislation.
This follows the apex court's August judgment holding privacy to be a fundamental right and additionally that sexual orientation forms an essential attribute of privacy.
Justice DY Chandrachud, one of the nine judges, said, "Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation".
Supreme Court said, 'Suresh Kumar Koushal needs to be considered afresh, in a fresh petition filed by Gay persons. "Choice can not be allowed to cross boundaries of law, but confines of law can not trample or curtail the inherent right embedded in an individual under Article 21 of the Constitution".
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