Supreme Court Refers Section 377 To 5-Judge Bench; Gives LGBT Community New Ray Of Hope

02/02/2016 10:37 AM IST | Updated 15/07/2016 8:26 AM IST
A participant holds an umbrella with rainbow colors as members of the Lesbian, Gay, Bisexual, Transgender (LGBT) community and their supporters from across India participate in a pride walk in Surat in Gujarat state, India, Sunday, Oct. 6, 2013. The walk was organized for the first time in the Gujarat state demanding social acceptance and equal rights. (AP Photo/Ajit Solanki)

The LGBTQ (lesbian, gay, bisexual, transgender, queer) community, braced for an arduous fight in and outside court for its fundamental rights of dignity and equality, let out a collective sigh of relief on Tuesday after the country's highest court agreed to

reopen the contentious debate on Section 377 of the Indian Penal Code that criminalises homosexuality.

The Supreme Court Bench headed by Chief Justice TS Thakur referred the curative petition seeking re-examination of its verdict criminalising sexual intercourse between consenting adults of the same sex to a five-judge Constitution Bench after senior counsel Kapil Sibal said the issue involved a question of far-reaching constitutional importance.

The news gave the community something to hold on to as legal processes took its course.

"It is definitely a step forward," Reuters quoted lawyer Anand Grover as saying. TV channels gathered outside the courtroom showed cheers going up among members of the community, which included parents and civil rights activists, as the news was shared by lawyers.

"I am hopeful to yet again in a democratic set-up have a way to argue for our rights," said LGBTQ activist Gautam Bhan.

Since important issues concerning the Constitution were involved in the matter, it would be appropriate to refer the issue to a five-judge Constitution bench, the three-judge bench comprising Thakur and Justices AR Dave and J S Khehar said. A larger bench would be constituted in the future.

The bench was told 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 section 377 (unnatural sexual offences) of the IPC was set aside. The bench was also informed that the churches of northern India and All India Muslim Personal Law Board were against decriminalising homosexuality, PTI added.

"They have accepted the petition. That means they see some merit in it," said Anjali Gopalan of the Naz Foundation.

Sibal, arguing for decriminalising of Section 377, submitted that 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 indignity and stigma.

"By this judgement, you have bound the present and future generations to indignity and stigma," PTI quoted him as saying.

Human sexuality should not be stigmatised, he said. 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.

The bench was hearing the curative petition filed by gay rights activists and NGO Naz Foundation against the apex court's December 11, 2013 judgement upholding validity of section 377 of IPC and the January 2014 order by which it had dismissed a batch of review petitions.

Members of the community have said time and again that law enforcement authorities often use the outdated section to perpetuate violence against them. They say they are treated as criminals for their sexual preference and denied basic human rights and dignity. The movement received a major setback on December 11, 2013, when the apex court set aside a Delhi High Court judgment decriminalising gay sex and asked lawmakers to first amend the legal provisions.

ALSO READ: On Feb 2, Supreme Court Should Do The Right Thing: Rethink Section 377

But SC's decision to reconsider based on a curative petition by gay rights activists has rekindled hope among many fighting for the rights of homosexuals that it will be a final, resounding and positive step towards ending discrimination, with far reaching consequences. A curative petition is the last judicial resort available for redressal of grievances in court which is normally decided by judges in chamber without giving parties to argue. In rare cases such petitions are given an open court hearing.

A Bench comprising Chief Justice TS Thakur and Justices Anil Dave and JS Khehar — will today hear a batch of eight curative petitions filed by various stakeholders.

ALSO READ: Whatever The 'Final Verdict', We're Not Going Back In The Closet

Activists around the world are struggling to secure the rights of the LGBT community. The US Supreme Court in June 2015 legalised same-sex marriage across the United States.

Why Section 377 Needs To Go

Here's how the section defines gay sex: "Unnatural offences—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.”

ALSO READ: With '377 In India', There Can Be No 'Make In India'

india lgbt

Gay rights activists, including NGO Naz Foundation, had said thousands from the LGBT community became open about their sexual identity during the past four years after the High Court decriminalised gay sex and they are now facing the threat of being prosecuted.

A bench of HL Dattu and Justice SJ Mukhopadhyay had dismissed a review petition in January 2014 filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable up to life imprisonment.

The Centre filed the review petition seeking a re-look to "avoid grave miscarriage of justice to thousands of LGBT" persons who have been aggrieved by the apex court judgement contending it is "unsustainable" as it "suffers from errors".

While setting aside the July 2, 2009 judgement of the Delhi High Court, the apex court had held that Section 377 does not suffer from the vice of unconstitutionality and that the declaration made by the High Court is legally unsustainable.

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