5-judge Supreme Court bench to review gay sex ban

Activists happy, say hopes raised.

The Supreme Court on Tuesday decided to re-examine its two-year-old verdict upholding the validity of Section 377 IPC insofar as it re-criminalises homosexuality between two consenting adults on the ground that there was no constitutional infirmity in this provision.

After a brief hearing of a batch of eight curative petitions seeking review of the verdict, a three-judge bench headed by Chief Justice T.S. Thakur, and including Justices Anil R. Dave and J.S. Khehar, posted the matter for hearing before a five-judge Constitution Bench that will now have to be constituted. This gives fresh hope and major relief to the LGBT (lesbian, gay, bisexual, and transgender) community that was seeking a review of the earlier ruling.

In a brief order, the bench said: “There are important constitutional questions involved in the issue relating to decriminalising consensual gay sex within the privacy of a house, which needs to be examined by a Constitution Bench.” When senior counsel Kapil Sibal wanted to know if the three judges, including the CJI, will be part of the five-judge bench, Justice Thakur said: “Now that we are referring it to a Constitution Bench, that may not be necessary.”

The court’s decision was widely welcomed by gay rights activists and supporters across the country. “I am happy the court has referred the matter to a five-judge bench. The court is going to look at constitutional arguments to decriminalise homosexuality, and hopes have been raised that if the petition has been accepted, that means they see some merit in it. Let’s hope this is the last leg of the fight,” said LBGT activist and Naz Foundation director Anjali Gopalan.

Welcoming the order, transgender rights activist Laxmi Narayan Tripathi said: “Actually the court could have struck it down and asked the government to react on it to assert that democracy prevails in the country and the right of expression, right to life and dignity is still there. But it is interesting how the matter has been referred to a five-judge bench.”

In court, meanwhile, Mr Sibal submitted that the most private of rights was involved, that is sexuality. He said breach of expression of sexuality within a private sphere was unconstitutional. In view of the earlier ruling, he said gay activists are stigmatised and face indignity and their rights under the Constitution are violated.

It was brought to the notice of the court that the Apostolic Churches Alliance and the Muslim Personal Law Board were opposed to any re-examination of the verdict and wanted dismissal of the curative petitions.

The curative petition challenged both the December 11, 2013 judgment and the January 2014 order in the review petitions to remedy the gross miscarriage of justice. It said: “The effect of re-criminalisation on account of the impugned judgment has caused immense prejudice to gay activists, who have been put at risk of prosecution under Section 377 IPC, on account of the association between homosexuality and penile-anal/penile-oral sexual acts.”

The petitioners drew the court’s attention to the fact that under an amendment introduced in the IPC in 2013, Section 375 IPC in 2013 makes penile non-vaginal sexual acts between a man and woman without consent an offence. By implication, such sexual acts between a man and woman that are consensual are no longer prohibited.

Consequently, the petitioner said: “These consensual acts between a man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant. Therefore Section 377 now effectively only criminalises all forms of penetrative oral sex which makes it ex facie discriminatory against homosexual men and transgender persons and is thus violative of Article 14.”

It further said: “This court has incorrectly held that a minuscule fraction of the population cannot claim fundamental rights, thereby rendering Part III of the Constitution meaningless for all individuals and minority communities in India. This finding has caused immense public injury, and if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens. The judgment reflects an issue of bias against Lesbian Gay Bisexual and Transgender (LGBT) persons.”

Former Union home minister P Chidambaram, who has been strongly in favour of the Supreme Court reviewing the 2013 judgment, on Tuesday welcomed the decision to refer the matter to a five-judge Constitution Bench, and hoped the Delhi high court ruling on it will be upheld. “I am happy that an error is being corrected. This is only the first step. I look forward to the day when the court will uphold the judgment of the Delhi high court,” he said.

Govt still to formulate views on issue: Naidu Union minister for urban development on Tuesday said homosexuality was a “humane issue” and the government had not formulated any view on the matter so far.

Reacting to the apex court referring the issue to a five-judge Constitution Bench, the minsiter said, “It is a humane issue, we have to study various aspects and take a final view. The debate is on. The government has, to my knowledge, not formulated any final view, but it is now before the court, let us await what is going to happen.”

Asked about his personal view, he said, “I have no personal view, because as a minister people should not talk about personal view.”

In his statement former Union home minister P. Chidambaram welcomed the Supreme Court decision and hoped that the Delhi high court judgment on it will be upheld.

“I am happy that an error is being corrected. This is only the first step. I look forward to the day when the SC will uphold the judgment of the Delhi high court,” he said.