Five-judge Constitution Bench to take a call on Section 377

Provision denies rights to privacy and dignity, court told.

Updated - December 04, 2021 11:34 pm IST

Published - February 02, 2016 03:50 pm IST - New Delhi

The Supreme Court on Tuesday referred a batch of curative petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.

A three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.

Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary.

Rebelling against its own procedural conventions in dealing with curative pleas, the Supreme Court indicated its openness to re-consider the constitutionality of Section 377 with new eyes.

Chief Justice Thakur told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new Bench may not limit itself to the narrow confines of the curative law — the Curative Bench will only entertain if petitioners prove that its review verdict violated principles of natural justice and the judges were biased — and opt for a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.

The indication came when Mr. Grover asked whether the three judges would also be present on the “curative bench.” As per the apex court’s Rupa Hurra judgment in 2002, the Bench considering curative pleas should necessarily have the three top judges of the Supreme Court.

In his opening argument to the Bench, senior advocate Kabil Sibal submitted that a person’s sexuality was his or her most precious, most private of rights.

It’s no mental disorder: petitioners

In his opening argument on Tuesday to the three-judge Bench of Chief Justice T.S. Thakur and Justices Anil R. Dave and J.S. Khehar, hearing a batch of curative petitions against Section 377 of the Indian Penal Code, senior advocate Kabil Sibal said: “Any provision that penalises an adult person’s expression of consensual sexuality in private is significantly unconstitutional.”

There was galaxy of senior lawyers representing the petitioners, including senior advocates K.K. Venugopal, Ashok Desai, Shyam Divan, Anand Grover and Colin Gonsalves.

The open court hearing was the fruit of two years of waiting since the batch of eight curative petitions was filed in March 2014 by parents, civil society, scientific and LGBT rights organisations against a January 28, 2014 apex court verdict dismissing their review petitions on the ground that Section 377 is Constitutional and applies to sexual acts irrespective of age or consent of the parties.

The Review Bench in January 2014 had agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally accepted verdict of the Delhi High Court. The High Court had declared Section 377 unconstitutional, and said it was in violation of the fundamental rights enshrined in Articles 14, 15 and 21 of the Constitution.

The High Court, led by its then Chief Justice A.P. Shah, had read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.

“Your past judgments not only affect the present but will bind future generations to a life of indignity and stigma,” Mr. Sibal submitted. “If not corrected now, your verdicts may result in ‘immense public injury,’” he argued.

Mr. Sibal, joined by Mr. Grover, appearing for petitioner Naz Foundation, argued that the apex court struck down the 2009 Delhi HC judgment despite the Centre not challenging the lower court’s verdict.

“The matter is of such importance that it should go to a five-judge bench,” Chief Justice Thakur responded.

Meanwhile, when Chief Justice Thakur asked if there was anyone opposing the petitioners, the Apostolic Churches Alliance made it clear that “homosexuality is an abomination in the Bible” and decriminalisation of Section 377 would lead to legalisation of homosexuality. It argued that such a situation would make the Prevention of Immoral Trafficking Act redundant. The petitioners have contended that homosexuality was not a mental disorder, but a normal and natural variant of human sexuality. Even the International Classification of Diseases (ICD-10) of the World Health Organisation (WHO) and the Diagnostic and Statistical Manual (DSM IV) of the American Psychiatric Association, the globally accepted standards for classification of mental health, no longer considered non-peno-vaginal sex between consenting adults as mental disorders.

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