A two-judge bench of the apex court while reinstating section 377 of the Indian Penal Code (IPC), had then struck down the 2009 Delhi High Court judgement, leaving the question of its constitutional validity upon the Parliament's discretion.
Dispelling the apprehensions of the Centre, he said: "We can't judge an issue in a vacuum", thereby telling Mehta that the issue of other rights of LGBT community was not before the bench. He pleaded the court for more time to file the Centre's reply if the arguments were beyond Section 377. "It's against Hindutva", said the BJP leader to ANI. The bench comprises Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
As it stands, Section 377 of the colonial-era law says whoever has carnal intercourse "against the order of nature" with any man, woman or animal, will be punished with imprisonment for life. On their dismissal, curative petitions were filed by the affected parties seeking a re-examination of the original verdict.
The court was not confining its ambit to LGBTQ or sexual orientation, it is looking into the aspect of two consenting adults who will not be liable for criminal action for their relationship. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
According to official data, 2,187 cases under Section 377 were registered in 2016 under the category of "unnatural offenses".
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"We allow the writ petition in the above terms".
He also questioned the judgment in the Suresh Kumar Kaushal vs Naz Foundation case in which the Supreme Court had upheld the constitutional validity of Section 377 after the Delhi High Court had decriminalised homosexuality.
The Supreme Court had in 2013 upheld Section 377 of the Indian Penal Code and re-criminalised homosexuality in India.
"We don't want a situation where two homosexuals enjoying a walk on Marine Drive (a Mumbai boulevard) should be disturbed by the police and charged under Section 377", Justice J. Chandrachud, who is a part of the bench hearing the matter, was quoted as saying by the channel.
Any decision of the court on issues such as same sex marriage without giving the government an opportunity to be heard would "not be in the interest of justice and would be violative of principles of natural justice". Such an exercise could obviously not be undertaken without wider consultations in the government. Section 377 IPC denies LGBT persons their rights to full personhood, sexuality, sexual autonomy, and choice of sexual partner, which are implicit in the notion of life under Article 21 of the Constitution of India.