The Supreme Court is likely to hear 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, on September 8.
On February 2, 2016, a Bench led by the then Chief Justice of India T.S. Thakur had indicated that the petitions need to be referred 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 Section 377 amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.
The fight against Section 377 got a major boost when a nine-judge Bench of the Supreme Court, while upholding the right to privacy as a fundamental right intrinsic to life and liberty, ripped apart a 2014 judgment dismissing the case against Section 377 of the Indian Penal Code, which criminalises consensual sexual acts of adults in private.
The nine-judge Bench, on August 28, observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”
In separate judgments, the Constitution Bench led by then Chief Justice of India J.S. Khehar concluded that the 2014 verdict by a two-judge Bench of the apex court pandered to a “majoritarian” view to turn down the LGBT community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.
The 2014 judgment's view that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” was not a sustainable basis to deny the right to privacy, Justice D.Y. Chandrachud observed in his judgment.
The curative petitions were the last stand for the over a decade-old legal fight for LGBT rights.
The Review Bench of the Supreme Court, 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.
The petitioners have contended that homosexuality was not a mental disorder, but a normal and natural variant of human sexuality.