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Supreme Court refers plea against Section 377 to five-judge Bench, LGBT community welcomes move

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The Supreme Court on Tuesday referred to a five-judge bench a curative petition against Section 377 of the Indian Penal Code which criminalises homosexuality.

SC LGBT

A bench of three seniormost judges – Chief Justice TS Thakur, Justice Anil R Dave and Justice Jagdish Singh Khehar – referred the curative petition by NGO Naaz Foundation and others seeking re-examination of its verdict criminalising homosexuality under Section 377 of Indian Penal Code.

Kapil Sibal, arguing against Section 377, told the court that banning gay sex bound present and future generations to indignity and stigma. Christian church body and Muslim Personal Law Board have opposed the petitions against Section 377. “Your Lordships, a person’s sexuality is his or her most precious, most private of rights… Any provision that penalises an adult persons’ expression of consensual sexuality in private is significantly unconstitutional,” senior advocate Kapil Sibal said in his opening argument to the Bench.

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.

“We shall overcome,” activists sang on learning that the top court had kept the legal battle alive instead of throwing out the petition.

In 2009, the Delhi High Court exempted gay sex between consenting adults from Section 377, which bans “carnal intercourse against the order of nature with any man, woman or animal.”

The Supreme Court reversed the landmark ruling in 2013, ending four years of decriminalisation that had helped bring homosexuality into the open in largely conservative India. The court said only Parliament can remove or change laws.

The apex court clubbed together 8 curative petitions filed by gay rights activists and NGO Naz Foundation against the apex court’s December 11, 2013 judgement upholding validity of section 377 (unnatural sexual offences) of IPC and the January 2014 order, by which it had dismissed a bunch of review petitions.

A curative petition is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber.

The petitioners, including the NGO, which has been spearheading the legal battle on behalf of lesbian, gay, bisexual, and transgender (LGBT) community, contended that there was an error in the judgement delivered on December 11, 2013 as it was based on an old law.

The news has come as a ray of hope for the lesbian, gay, bisexual and transgender (LGBT) community. “We’re very happy, now we can produce facts and evidences in a better way,” LGBT activist Rituparna Borah said.

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