08/01/2018 3:06 PM IST | Updated 08/01/2018 3:06 PM IST

'People Who Exercise Their Choice Should Never Remain In Fear,' Says SC, Agreeing To Reconsider Section 377

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Buddhika Weerasinghe / Reuters
Participants take part in a gay pride march in New Delhi June 28, 2009.

The Supreme Court on Monday agreed to reconsider its earlier decision on Section 377 of the Indian Penal Code, that criminalizes gay sex, and referred a fresh plea in this matter to a larger bench, a move that is bound to kindle hope among India's LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community.

"You can't put in jail two adults who are involved in consenting unnatural sex," PTI quoted advocate Arvind Datar, appearing on behalf of one Navtej Singh Johar seeking to declare Section 377 unconstitutional, as saying.

"A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can't be allowed to cross boundaries of law but confines of law can't trample or curtail the inherent right embedded in an individual under Art 21 of Constitution," Indian Express quoted the three-judge bench headed by Chief Justice of India, Dipak Misra, as saying.

In August this year, a nine-judge bench of the Supreme Court unanimously decided that right to privacy is a fundamental right. The nine judges unanimously overruled the two earlier judgements of the apex court — the M P Sharma verdict of 1950 and Kharak Singh verdict of 1960 — that right to privacy is not protected under the Constitution.

In December 2013, SC upheld Section 377 saying that the onus of repealing it was on Parliament, dealing a body blow to the gay rights movement in India.

PTI reported that the bench conceded that the matter needed to be heard by a larger bench. The news was immediately greeted on social media by gay rights activists.

In its privacy judgment too, the full text of which can be read here, the apex court judges spoke of the 2013 order by the other SC bench in extremely critical terms.

"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," it said. "The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection," the court observed.

Today, the court issued a notice to the Centre seeking its response to a writ petition filed by five members of the LGBT community, who said they live in fear of police, Times of India reported.

In July, 2009, the Delhi High Court, hearing a plea by the NGO 'Naz Foundation', had found Section 377 violative of fundamental rights of consenting adults. However, a Review Bench in January, 2014, had agreed with the original appeal judgment of December, 2013.

In Feb, 2016, the Supreme Court referred the curative petitions against Section 377 to a five-judge Constitution Bench.