"Colonial Laws Must Pass Constitutional Rigour": Top Court On Gay Sex Law

Colonial laws like the Indian Penal Code provision which criminalizes consensual gay sex, will have to pass the rigours of the Constitution, the Supreme Court observed on Tuesday.

A five-judge constitution bench headed Chief Justice Dipak Misra, which commenced its crucial hearing on a batch of petitions challenging re-criminalization of consensual sex between two adults of the same sex, was faced with the question whether there was presumption of validity in favour of the colonial laws.

"Article 372 of the Constitution allowed the laws immediately before the commencement of the Constitution to survive, because it did not want a vacuum. But they (laws) had to pass the rigour of the Constitution," the bench, also comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, said.

The observation came when senior advocate Arvind Datar, appearing for one of the petitioners, submitted that the laws like section 377 of the IPC, which were made before the Constitution was framed, cannot be held to be constitutional just because Parliament has left them "untouched".

The bench seemed in agreement with the submission that all colonial era laws will have to conform to the constitutional scheme and these could be held invalid to the extent of inconsistencies with the Constitution.

The issue was whether section 377 of the IPC was in conformity with the fundamental rights under Articles 14 (equality before law), 19 (protection of rights including freedom of speech) and 21 (right to life and liberty) of the Constitution, the bench said.

It then asked as to whether there was any judgement which said that there was presumption of validity in favour of a law made before the Constitution came into being.

Former Attorney General and senior advocate Mukul Rohatgi, appearing for another petitioner, said that a "pre-constitutional law like section 377" will have to go as it does not conform by the Constitution.

"What is the 'order of nature'? Was it the order of nature in 1860? What is the order of nature that can change with the passage of time. Laws made 50 years ago can become invalid over time," he said.

Section 377 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.