Section 377 of the Indian Penal Code, which criminalises gay sex, reflects only medieval prejudice. A lost opportunity to invalidate it has been dramatically resurrected. Two years ago, the Supreme Court declined to review its retrograde decision of 2013 upholding the validity of Section 377. By rejecting the review petition, the court then failed to make use of an opportunity to revisit the contentious Suresh Kumar Koushal verdict and bring the law in line with its own vision of fundamental rights, especially the idea that equality and dignity cannot be denied to any section. The court has now paved the way for a comprehensive hearing on how to protect the dignity and rights of individuals with alternative sexual orientation by referring the matter to > a five-judge Constitution Bench . The Chief Justice has noted that the case involves questions with constitutional dimensions. The court has indicated that the larger Bench could traverse beyond the limits of a curative petition, which is essentially a limited, additional remedy to aggrieved litigants after the Supreme Court’s final verdict and the rejection of a review. There is new hope that the Delhi High Court judgment of 2009, reading down Section 377 to restrict its criminal import to non-consensual sexual acts involving adults and all sexual acts inflicted on minors, may be restored.
Read: >LGBT rights - The journey till now
The latest challenge to its continuance on the statute book comes in a fresh context where the intervening years have seen considerable legal progress in the jurisprudence of sexual orientation and gender identity. In April 2014, while recognising the transgender community as a third gender entitled to the same rights and constitutional protection as other citizens, a Bench of the Supreme Court subtly recorded its criticism of
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