Section 377: Legal experts call for overhaul of archaic law

The legal luminaries called for a total overhaul of the 1869 Indian Penal Code, and said the apex court's 2013 decision overturning the Delhi High Court verdict decriminalising section 377 of IPC requires reconsideration.

Senior advocates Rajeev Dhavan, Dushyant Dave, Anand Grover, Colin Gonsalves and lawyer Kamini Jaiswal were unanimous in welcoming today's order of the bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.

Dhavan and Dave criticised the apex court's 2013 verdict declaring the IPC provision penalising gay sex as constitutional and said the two-judge bench seemed to have taken "an unwarranted view" which "requires a serious reconsideration" of the archaic law.

Jaiswal, Gonsalves and Grover said it was high time that the 2013 judgement was revisited. They said the apex court has correctly placed the matter before the five-judge constitution bench, which is hearing a curative petition against the SC order, and it will be eagerly seen what they are going to do.

Dave said: "It's quite refreshing to see a positive stand in the matter. The judgement of the apex court declaring 377 to be intra vires really requires serious reconsideration.

This provision itself, on the face of it, is archaic and wholly unconstitutional. Nobody can support it under any circumstances.

"The judgement of the Supreme Court was, in fact, quite surprising, and I would say it was quite orthodox not in tune with the changing times," he said.

Dhavan, said the view taken by the judges in the 2013 verdict was clearly wrong.

"Unfortunately, the two-judge bench seems to have taken an unwarranted view on section 377 in the 2013 verdict criminalising gay sex. The view was clearly wrong. They should have sent it to a larger bench. Now let's hope that a Constitution Bench hears it," he said.

The apex court had in December 2013 set aside a 2009 Delhi High Court judgement which had held section 377 of IPC unconstitutional. The plea was filed by NGO 'Naz Foundation'.

Grover, the NGO's counsel, said: "The curative petition has already been filed and is pending. Ordinarily this will be tagged. So, we are going to see what they are going to do and go accordingly."

Gonsalves called the decision "an excellent idea".

"It's a matter of utmost social and legal significance.

It's correctly placed before the Constitution Bench," he said.

While terming the move as positive, Jaiswal called for revamping of the entire IPC.

"Two judges had decided against this earlier. So the matter has to be decided by a larger bench. The IPC is of 1869. It's high time we have to relook at all the provisions.

The entire IPC has to revamped looking at the present day scenario. It's a good beginning," she said.

Section 377 of the IPC refers to 'unnatural offences' and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

Dave also said that there was no point in putting in jail a large number of innocent people over their sexual orientation.

"One may or may not agree with homosexuality but you cannot criminalise it. Society's so called moral standards cannot be imposed by putting people in jail for their personal or private choice," he added.