New Delhi: In a ray of hope for the LGBT community, the Supreme Court Tuesday decided that a five-judge Constitution bench will revisit a two-year-old verdict by which a colonial law, criminalising consensual sex between the same sex adults, was restored.
“It would be appropriate to refer the issue to a five-judge Constitution bench”, a three-judge bench said in an open-court hearing. The bench observed that there were important issues concerning several “constitutional dimensions of importance” that were ingrained in the challenge against Section 377 of the IPC which criminalised homosexuality,
Section 377 of IPC, enacted during the British Raj way back in 1860, criminalises sexual activities between the same sex as it was “against the order of nature”. The three-judge bench comprising Chief Justice T S Thakur and Justices A R Dave and J S Khehar agreed that the matter involving important issues concerning the scope of human relationship needed to be heard by a larger bench.
Tuesday’s apex court’s decision was welcomed by the members of the Lesbian, Gay, Bisexual and Transgender communities and gay right activists who said they are happy that the curative petition has not been dismissed and there is a hope of positive outcome of their 15-year-old legal battle.
The bench, which did not issue notice to the Centre or any of the parties opposing decriminalisation of section 377, said the larger bench would be constituted in the future.
During the hearing, the bench was told that there were eight curative petitions seeking re-examination of the order on the review petition and the December 11, 2013 judgement by which the Delhi High Court verdict de-criminalising section377 (unnatural sexual offences) of the IPC was set aside.
A battery of senior lawyers appeared in the case Tuesday. At the outset, senior counsel Kapil Sibal, arguing for decriminalising section 377 of IPC, submitted that major constitutional issues are involved in the matter. He submitted that the issue concerned the “most private and the most precious” part of life, that is right to sexuality, which has been held as unconstitutional.
“Any provision that penalises an adult persons’ expression of consensual sexuality in private domain is significantly unconstitutional,” Sibal submitted.
“By this judgement, you have bound the present and future generations to dignity and stigma,” he submitted by referring to the December 11, 2013 verdict of the apex court restoring the provision of section 377 of the IPC which was decriminalised by the High Court. Hearing his brief arguments, the bench said such an important issue needed to go to a Constitution bench of five judges.
The bench was informed that the All India Churches Association and All India Muslim Personal Law Board were against decriminalising homosexuality when the Chief Justice asked Sibal “whether there is anyone opposing you.”
The counsel for the Churches Association said their opposition was on a principled stand. “Homosexuality is an abomination in the Bible” and decriminalisation of Section 377 would lead to its legalisation, he said. Agencies
