Section 377 IPC: Naz Foundation decision to be re-considered; Matter referred to larger bench

Hearing the plea of certain persons directly affected by the offence enumerated under Section 377 IPC, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a larger bench and said:

“The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.”

Senior Advocate Arvind Datar argied before the Court that the 2-judge bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 that upheld the validity of Section 377 has been guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. He said:

“Section 377 IPC cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional because there can be abuse of the same.”

He, however, made it clear that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults.

Taking all the apsects into consideration, the bench said:

“A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.”

The bench was, hence, of the opinion that the decision in Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age. [Navtej Singh Johar v. Union of India, Writ Petition(s)(Criminal) No(s).76/2016, order dated 08.01.2018]

 

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