Reviving the debate on whether homosexual acts should be penalised as unnatural sex under the Indian Penal Code (IPC) Section 377, the Supreme Court on Tuesday decided to form a Constitution Bench of five judges to examine the issue.
Without issuing a notice, the court placed the bunch of eight petitions challenging Section 377 of IPC before a five-judge Bench. The Bench of Chief Justice TS Thakur, Justices AR Dave and JS Khehar said, “The issue is important as counsels appearing for the parties have pointed out several important issues of constitutional importance.”
It is unprecedented for a curative petition to be referred to a Constitution Bench. Considering the fact that a curative petition is the last recourse available to a litigant to seek justice from the court, the decision of the SC has given a ray of hope to the lGBT (lesbian, gay, bisexual, transgender) community to fight the issue legally.
Inside the jam-packed courtroom, when the three judges began hearing the case, they encountered a battery of senior lawyers led by KK Venugopal, Ashok Desai, Kapil Sibal, Shyam Divan, Anand Grover, Colin Gonsalves, who represented the petitioners comprising NGOs and individuals supporting gay sex.
Sibal, who appeared for a parent who is supporting the cause of her gay son, said, “The most precious of rights is the right to sexuality. The SC in a National legal Services Authority of India decision recognised the human aspect of sexuality by recognising transgenders as the third sex. But by the decision on Section 377 (Suresh Kumar Kaushal case), this court has bound the present and future generation to indignity and stigma. It is an issue for the posterity and must be decided by a five-judge Bench.”
Seeing the sea of people standing in support of the curative petitions, the Bench was curious to know, “Is anybody opposing itIJ” Surprisingly, Solicitor-General Ranjit Kumar maintained a studied silence on behalf of the Centre. The lone voice of dissent came from the Apostolic Churches Alliance represented by advocate Manoj V George. He pointed out that the Muslim Personal law Board too is a party in the case and is opposed to any amendment to Section 377.
The Bench observed, “Such important issues arise in these petitions. let it go to a five-judge Bench.” Members of the lGBT community were in a celebratory mood after hearing the court’s decision. One of the pro-gay activists said, “We have got a chance to argue our case again.”
With the matter being sent to the Constitution Bench, the discretion will rest with the CJI to constitute a Bench either immediately or in its turn.