Supreme Court with its 5-judge Constitution bench comprising of CJI Dipak Misra, RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra JJ., would start the hearing in one of the most revolutionary and hovered Section 377 of the Indian Penal Code, 1860 in Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
Apex Court had criminalised the unnatural sex between two consenting adults in 2013 after the Delhi High Court had de-criminalized the same in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762in the year 2009, which eventually was reversed in Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.
Section 377 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.
Several pleas were filed challenging the re-criminalisation of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.
