The Supreme Court on Monday sought the Central government’s response on hotelier Kesav Suri challenging Indian Penal Code’s Section 377 which criminalises any sort of homosexual activity and other forms of unnatural sex.
Suri, the Managing Director of Lalit Suri Hospitality group, is also a LGBT rights activists.
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 is already seized of the matter as it had on 8 January had said that it will re-examine its 2013 verdict upholding Section 377 that criminalises gay sex. The matter has been referred to a larger bench.
While agreeing to re-examine 2013 judgment, the court had on 8 January 2018, said observed “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 had on January 8 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 Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others holding that Section 377 was “violative of fundamental rights under Article 21 (right to life)”.
The top court by its 2013 order had set aside a Delhi High Court’s 2 July 2009 verdict decriminalising gay sex.
NGO Naz Foundation which is seeking the scraping of Section 377 of IPC had moved the curative petition seeking a relook at its 12 December 2013 judgment and subsequent 28 January 2014 order in a review petition upholding Section 377.