A Bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud decided to re-consider the top court’s December 12, 2013, order
The Supreme Court on Monday said it will re-examine its 2013 verdict upholding the Indian Penal Code’s Section 377 criminalising gay sex as it observed that “a section of people or individuals who exercise their choice should never remain in a state of fear”.
A Bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud decided to re-consider the top court’s December 12, 2013, order saying that “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 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”.
Referring the matter to a larger Bench, Chief Justice Misra, in his order, said: “The determination of order of nature is not a constant phenomenon. Social morality also changes from age to age. The law copes with life and accordingly change takes place”, referring to the phrase in Section 377 which says, “Carnal intercourse against the order of nature”.
Stating that understanding of “natural” is not constant, the court said: “What is natural to one may not be natural to the other but the said natural orientation and choice cannot be allowed to cross the boundaries of law and as the confines of law cannot tamper or curtail the inherent right embedded in an individual under Article 21 of the Constitution.”
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