Petitions challenging constitutionality of IPC provisions on homosexuality and adultery referred to constitutional bench

A three judge bench of the Supreme Court has referred a fresh petition challenging the constitutionality of Sec. 377 of the Indian Penal Code, which criminalises same-sex sexual intercourse, to a five judge constitutional bench. The Court noted that its decision in Suresh Kumar Kaushal v. Naz Foundation, which had effectively recriminalized homosexuality in 2014, required reconsideration in light of the holding of right to privacy as a fundamental right, and the absence of any reference to consent in determining criminality of sexual acts under Sec. 377.

In another case, the Court has noted the constitutional issues involved in the criminalisation of a wife’s adultery under Sec. 497 of the Indian Penal Code, and referred a petition challenging the same to the constitutional bench. In making the order, the Court noted the anomalies created by the selective criminalisation of a wife’s adultery alone – which exposes her paramour to criminal liability upon her husband’s complaint – while exempting the husband from any responsibility for his adulterous liaisons.

Navtej Singh Johar and Ors. v. Union of India W.P. (Crl.) 76/2016

Joseph Shine v. Union of India W.P. (Crl.) 194/2017

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