The Constitution Bench hearing in the challenge to Section 377 of the Indian Penal Code is entering a crucial second week.
Last week, pro-Section 377 lawyers asked why the court is hearing a batch of fresh writ petitions to delete it when the court had twice upheld the penal provision — in December 2013 and in the government’s review petition in January 2014.
These lawyers have asked why the five-judge Bench is not deciding the curative petition pending since 2016. The curative petition was filed as a last resort for the LGBTQ community to overcome the court’s confirmation that homosexuality is a criminal act. Instead of taking it up, the Constitution Bench led by Chief Justice Dipak Misra has chosen to decide the new writ petitions filed by choreographer Navtej Singh Johar and others under Article 32 of the Constitution. The petitions seek a declaration that the fundamental right to life under Article 21 include the right to sexuality, sexual autonomy and choice of sexual partner.
More questions
Questions have also been raised why the Bench, by hearing these writ petitions, ignored the express prohibition in the Rupa Ashok Hurra judgment of 2002. In this judgment, another five-judge Bench unequivocally held that no Article 32 petitions can be filed against a final judgment of the Supreme Court.
The pending curative petition has great limitations, and in all likelihood would have failed merely because of the restrictions imposed on the curative jurisdiction itself. Curative petitions are not heard in open court. Only two issues can be raised in them — that the judgment was passed without hearing the party and judicial bias. Curatives are a rare remedy, winning one is even more so.
But Chief Justice Misra’s Bench has handled the questions with aplomb. It has indicated that the historic nine-judge Bench verdict declaring privacy a fundamental right, has been a game-changer for the LGBTQ community. In separate judgments on August 24, 2017, the Bench concluded that the 2013 verdict by a two-judge Bench pandered to a “majoritarian” view to turn down the LGBT community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.
The Constitution Bench now hearing the Section 377 petitions has reasoned that the privacy judgment is a “subsequent development” which is not part of the pending curative petitions. Chief Justice Misra has observed that his Constitution Bench has to view the issue of Section 377 in the fresh light thrown upon the issue of Section 377 by the privacy judgment of 2017.
Justice D.Y. Chandrachud, who authored the main opinion in the privacy case and is now one of the five judges on the Misra Bench, had observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation...”.
