Supreme Court agrees to revisit law criminalising homosexuality

The Supreme Court on Tuesday agreed to hear the petition filed by an NGO seeking to reverse the court's judgment on Section 377, which makes gay sex a criminal offence.

Written by Utkarsh Anand | New Delhi | Updated: February 3, 2016 10:41 am
section 377, lgbt, gay, gay sex, homosexuality, supreme court section 377, section 377 supreme court, section 377 supreme court petition, india news The bench, also comprising Justice Anil R Dave and Justice J S Khehar, accepted the argument by senior lawyers appearing for gay rights organisations that this matter be referred to a Constitution Bench for an authoritative ruling.

Observing that the question of criminalising homosexuality “involves very large and significant constitutional issues”, the Supreme Court on Tuesday referred to a five-judge Constitution Bench its 2013 ruling that upheld a law making gay sex an offence punishable by 10 years to a life term in jail.

Offering hope to gay rights organisations, a three-judge bench headed by Chief Justice of India T S Thakur said that the clutch of curative petitions demanding reversal of the verdict should be heard by a larger bench since they pose questions with “constitutional dimensions of importance”.

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The bench, also comprising Justice Anil R Dave and Justice J S Khehar, accepted the argument by senior lawyers appearing for gay rights organisations that this matter be referred to a Constitution Bench for an authoritative ruling.

A curative petition has less than one per cent success rate in the apex court, but the bench recorded the petitioners’ submissions and said the larger bench shall be constituted appropriately to hear the matter. Since the case has been referred and no notice issued, the Centre is still to appear in the matter to justify the constitutional validity of Section 377 of the IPC.

A curative petition is the ultimate legal remedy available to a petitioner against the main judgment.

A batch of petitions, led by NGO Naz Foundation, had challenged the 2013 judgment and the decision on the review petition rejecting their plea to de-criminalise homosexuality. It was in April 2014 when these petitions had come up for hearing the last time. The hearing of the petition in an open court is a rare opportunity for a petitioner to point out errors, if any, in a judgment.

The order of reference on Wednesday came after a galaxy of senior lawyers, including Kapil Sibal, Anand Grover and Colin Gonsalves, submitted that the top court judgment in 2013 has curtailed the most private of the rights of an individual by criminalising the right of one’s sexual preferences and sexuality.

“By the impugned judgment, present as well as future generations have been bound to a life of indignity and stigma. If not corrected now, this verdict will result in grave public injury and it will deprive people of their most private right. It involves huge constitutional issues,” Sibal argued.

The bench agreed that the matter touched subjects of constitutional importance and hence a larger bench should hear eight petitions. The court also clarified: “We are not issuing notices at present. Let it be heard by a Constitution Bench.we don’t need to delve deeper into the issue right now.”

Meanwhile, following a query from the bench, the counsel for Apostalic Churches Alliance and the Muslim Personal Law Board stood up to contend that they are opposing the curative petitions.

Citing religious scriptures and values, the Churches’ counsel said that “homosexuality is an abomination in the Bible.” The two counsels added that their organisations had also appealed against the 2009 Delhi High Court judgment that decriminalised gay sex by holding that Section 377 of the Indian Penal Code violated the principles of equality and non-discrimination.

The bench recorded their opposition in its order of referring the matter to the Constitution Bench, which it said should be set up at an early date.

In December 2013, a two-judge bench of the apex court had withdrawn the legal protection to what it called a “minuscule fraction of the country’s population” comprising lesbians, gays, bisexuals and transgenders (LGBT). It ruled that Section 377 will continue making gay sex — “irrespective of age and consent” — an offence, while adding that Section 377 did “not suffer from any constitutional infirmity”.

Leaving it for Parliament “to consider the desirability and propriety of deleting Section 377 from the statute book or amend it,” the top court had set aside what it called the “legally unsustainable” Delhi High Court verdict that Section 377 violated the principles of equality and non-discrimination enshrined in the Constitution.

With inputs from PTI

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  1. U
    US NRI
    Feb 2, 2016 at 8:16 pm
    Christianity Google " future of world religions" you will come to know why Christianity is worried and why trump is scared.
    1. K
      K SHESHU
      Feb 2, 2016 at 11:44 am
      At last, Supreme Court has sensed the gravity of the matter and referred it to a fuller bench. The initiation is welcome though the final verdict would take some more time.
      1. A
        Albert Ross
        Feb 2, 2016 at 12:44 pm
        If you let the goverment control the private lives of a group you don't like, whats to stop the goverment from controlling your private life?
        1. K
          Feb 2, 2016 at 9:08 pm
          A good society should protect the minorities in their midst, no only for votes but also on moral grounds, India is secular and open so the LGBT should have all the rights that other people have. Forget the religion and God, both were made by man.
          1. D
            Damaru Prasad
            Feb 2, 2016 at 5:23 pm
            LGBT guys must be sent to ISIS territory. Let them shoot them where they feel the itch. Of course politicians need money and judges glamor. Debate should how they should be eliminated.
            1. B
              Feb 2, 2016 at 10:28 am
              Good news for chaddi walas
              1. L
                Feb 2, 2016 at 1:38 pm
                Good news for Vaticanites.
                1. V
                  venkataraman K
                  Feb 2, 2016 at 11:33 am
                  this is yet another case of a "non-issue" getting prominence. such matters should be ignored. what is benefit for 120 crores is to be seen. such peions should not all be entertained. There are many burning issues which requires judiciary interference. I can say quality life getting deteriorated venkataraman k
                  1. M
                    madan gupta
                    Feb 3, 2016 at 3:11 am
                    सेक्स फ्री , जी चाहे जिस को पकड़े . कोई मर्जी वर्जी नहीं.
                    1. R
                      Richard Duncan
                      Feb 2, 2016 at 8:36 pm
                      "Christian church body and Muslim Personal Law Board have opposed the peions against Section 377" These two paragons of ignorance don't want people to be free to love or lust after the person of their choice, now that is a shock! How has bowing down to Islam worked for you in the past India? The Christian's are almost as rigid in their belief system (like Islam) based on a philosophy from 500 A.D. when the known world was a speck on the globe that we know today.
                      1. S
                        Feb 2, 2016 at 1:15 pm
                        Bible is a book of deception, which is changed based on need with every edition!
                        1. S
                          Feb 3, 2016 at 3:01 am
                          For vatican controlled pressutes, talking about vatican terrorism is a taboo! More than 60% of Indians have sold their soul in exchange for beef fry! With vatican terrorists staging false flag attacks and indulging in all sort of deceptive practices, it is only a matter of time that they will be caught and hung by their balls! JeSucks Shaving lowers one's IQ! Vatican terrorists call selling of one's soul as being broadminded, cultured, 21Centuryish, modern.
                          1. S
                            Feb 2, 2016 at 10:16 am
                            This is a disease spread by vatican das' and dasis.
                            1. S
                              Feb 3, 2016 at 3:03 am
                              Vatican propaa.
                              1. T
                                Feb 2, 2016 at 11:41 am
                                so are you telling me that until these issues are resolved(which will take half century), these people have to wait for their basic human rights?
                                1. T
                                  Feb 2, 2016 at 11:43 am
                                  wrong. the ban is spread by vatican which used to bible as excuse for their homophobia. learn something.
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