In a major relief for gay rights activists, the Supreme Court on Tuesday referred the matter pertaining to scrapping of Section 377 to a five-judge bench.
The apex court was hearing a curative petition filed by gay rights activists challenging the court’s earlier verdict confirming the validity of Section 377 of IPC that makes gay sex criminal.
This means the legal battle to repeal Section 377 has not ended and Supreme Court will hear all 8 curative pleas together. The bench was headed by Chief Justice TS Thakur and two other senior justices- Anil R Dave and Jagdish Singh Kehar.
"This is a most hopeful sign. Now a Constitution bench can actually overturn the previous judgement," lawyer and activist Lawrence Liang said.
L Ramakrishnan, lawyer who works with NGO Saathi said, "There is much cause for optimism now that a constitutional bench will be looking at all curative petitions."
"They have accepted the petition that means they see some merit in it," said Anjali Gopalan of Naz Foundation.
The Muslim Personal Law Board & Churches of India that were present during the hearing continue to oppose the petition.
The petition was filed by LGBT activists, an NGO Naz Foundation and other individuals including filmmaker Shyam Benegal.
Senior counsel Kapil Sibal, arguing for decriminalising section 377 of IPC, submitted that huge constitutional issues are involved in the matter.
He submitted the issue concerns the "most private and the most precious" part of life that is right to sexuality within the four corners of your domain which has been held as unconstitutional.
"By this judgement, you have bound the present and future generations to dignity and stigma," he submitted.
Further, he said that human sexuality should not be stigmatised.
Hearing his brief arguments, the bench said such an important issue needs to go to a Constitution Bench of five judges.
The bench was informed that the high court judgement was not challenged by the Centre which had left it for the apex court to take a call on the issue.
However, when the high court judgement was overturned by the Supreme Court, the Centre had preferred the review petition which was dismissed.
In December 2013, the Supreme Court had reversed a Delhi High Court judgement of 2009 which had decriminalized homosexuality. The apex court had then said, “It was the Parliament’s job and not that of the judiciary, to decide the issue.” With that, the apex court had effectively criminalised homosexuality again.
In 2009, the Delhi High Court exempted gay sex between consenting adults from Section 377 and said the law was against the right of privacy, personal liberty and equality.
In 2014, the court had upheld the legality of Section 377 while hearing a review petition.
Section 377 was a law introduced by the erstwhile British government in 1862 which criminalized homosexuality by terming “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 fine.”
Although the constitution of India guarantees appeals to judgements passed by courts and also apex court through Article 136 of the Constitution of India, 1950, there is no direct mention of a curative petition in the Constitution or in any statute. The law allowing curative petitions was created following the apex court verdict in the Ashok Hurra vs Rupa Ashok Hurra case, in which the court held that a curative petition can only be filed once the review petition against a judgement is dismissed, and only on two narrow grounds – failure of natural justice (that is, the petitioner wasn’t heard by the court), and undisclosed bias of the judge hearing the case which adversely affected the petitioner. A curative petition can be filed only with the certificate of a Senior Advocate.
Only three curative petitions till date have been successful in getting the final judgement of the Supreme Court overturned.
Speaking to The News Minute, Liang said that the curative petition, “a relatively new innovation” in the Indian legal system “is the only mechanism left for the activists as far as the legal system is concerned”.
Background of the case
In 2001, Naz Foundation, an NGO fighting for gay rights, filed PIL in Delhi High Court seeking legalisation of gay sex among consenting adults.
September 2, 2004: High Court dismisses the PIL seeking decriminalisation of gay sex.
September 18: Gay right activists file review petition.
November 3: High Court dismisses the review plea.
December: Gay rights activists approach the apex court against the order of the High Court.
April 3, 2006: Apex court directs the High Court to reconsider the matter on merit and remands the case back to High Court.
October 4: High Court allows senior BJP leader BP Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.
September 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home Ministry and Health Ministry over decriminalisation of homosexuality. High Court refuses the plea and final argument in the case begins.
September 25: Gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.
September 26: High Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.
September 26: Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
October 15, 2008: High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.
November: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
November 7: High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.
July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults.
July 9: Delhi astrologer challenges High Court verdict in Supreme Court.
Later on, several others including BJP leader Singhal (since dead), religious organisations, rights activists and yoga guru Ramdev’s disciples have also opposed the judgement.
February 15, 2012: Supreme Court begins final day-to-day hearing in the case.
March 27, 2012: Supreme Court reserves verdict.
December 11, 2013: Supreme Court sets aside the 2009 Delhi High Court order which had decriminalised gay sex.