Section 377 in SC: Former AG Rohatgi says still awaiting Modi govt response

The Supreme Court on Monday sought the Central government’s response on hotelier Keshav Suri’s petition challenging Indian Penal Code's Section 377, which criminalises sexual acts “against the order of nature”, regardless of consent. Section 377 effectively criminalises consensual same sex activity and stigmatises the LGBT community. Suri, the Managing Director of Lalit Suri Hospitality group, is also an LGBT rights activist.

As the bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud tagged Suri's plea with an earlier pending challenge to Section 377, senior counsel Mukul Rohatgi urged the court to ask the government to respond to the plea. "I want to know the Central government's stand on the constitutionality of Section 377. For one year, no reply has come," he told the bench.

The top court in a December 2013 order had set aside a Delhi High Court verdict of July 2009, decriminalising consexual sexual acts between adults under Section 377. NGO Naz Foundation (India) Trust and other intervenors in the Delhi High Court, have moved curative petitions seeking a re-look by the Supreme Court at its December 2013, judgment.

While agreeing to re-examine its 2013 judgment, the court had on January 8, 2018 observed that "a section of people or individuals who exercise their choice should never remain in a state of fear". Referring the matter to a larger bench, the court said: "Individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution." "The morality that public perceives, the Constitution may not conceive of," the court had said making it clear that the "consent between two adults has to be the primary pre-condition. Otherwise the children would become prey, and protection of the children in all spheres has to be guarded and protected".

The top court's January 8 order had come on a petition by Sangeet Natak Akademi awardee and Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others holding that Section 377 was "violative of fundamental rights under Article Article 21 (right to life)".

Inputs by NH Web Desk.