Supreme Court to review Constitutional validity of section 377, seeks reply from Centre
The Supreme Court decided to reconsider whether Gay sex between consenting adults will be a criminal offence or not. After the apex court banned instant triple talaq, the LGBT activists urged the apex court to also take steps to decriminalise homosexuality. The issue of Section 377 of the IPC, which criminalises homosexuality, is pending before the top court.
Supreme Court said, 'Suresh Kumar Koushal needs to be considered afresh, in a fresh petition filed by Gay persons. Matter referred to larger Bench.'
A three-judge bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said the SC's 2-judge bench judgment upholding the validity of Section 377 appears to hurt the sexual preferences of individuals.
Also, the Bench issued a notice to the Centre seeking a response on a writ petition filed by five members of LGBT community, who say they live in fear of Police because of their natural sexual preferences.
In 2013, Suresh Kumar Koushal and another v/s NAZ Foundation and others case, the Supreme Court of India which overturned the Delhi High Court case Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code.
On 11 December 2013, the SC set aside the 2009 judgement given by the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse "against the order of nature". In its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated -
"In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable."
Subsequently, the then central government had filed a review petition on 21 December 2013. In its review petition, the Centre said: "The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution."