A five judge constitution bench of the Supreme Court will hear the curative petition by NGO Naaz Foundation and others seeking a relook at its verdict upholding the validity of Indian Penal Code’s section 377 that criminalises homosexuality.
A bench of three senior-most judges – Chief Justice T.S. Thakur, Justice Anil R. Dave and Justice Jagdish Singh Khehar – referred the curative petition to the larger bench as senior counsel Kapil Sibal said the issue involved constitutional questions of far-reaching importance and must be heard by a five judge bench.
“Since several constitutional issues are sought to be agitated in these petitions, let the matter be placed before the Chief Justice of India for posting to the five judges bench,” ordered the bench after a brief hearing of the curative petition on Tuesday.
The court did not issue any notice, leaving it for the larger bench to take a call.
At the outset, Sibal said that the issue before the court concerned the most private right, the most precious right of the people – the sexual right and argued that if it is being exercised with consensus and within four walls, then no one should have any objection.
Faulting the December 12, 2013 apex court judgment and subsequent January 28, 2014 order in a review petition upholding the validity of section 377, he said the issue involved the rights of the gay people who are facing indignity and stigma by the judgment of a two judge bench.
Telling the court that the issue before it was within four corners of the right to privacy under the constitution’s article 19(1) guaranteeing freedom of speech and expression, Sibal said that it should be heard by a five judges bench.
As senior counsel Anand Grover appearing for one of the eight petitioners seeking a relook at the apex court verdict sought to address the court, Chief Justice Thakur asked: “Is there anyone opposing it?”
The court was told that an organisation representing the church, the All India Muslim Personnel Law Board and a few individuals were opposing the plea.
The apex court by its December 12, 2013 order and on the review petition on January 28, 2014, upheld the validity of section 377, finding no constitutional infirmity in the penal provision that criminalises homosexuality.
It had set aside the Delhi High Court’s July 2, 2009 verdict reading down section 377 and decriminalising consensual sex between the adults of same gender.
The then bench of Chief Justice P.Sathasivam, Justice R.M.Lodha, Justice H.L.Dattu and Justice S.J.Mukhopadhaya (all retired since then) had on April 3, 2014, directed hearing of the curative petition in open court after they considered the plea by Naz Foundation in their chambers.
The NGO had moved the Supreme Court seeking to cure “gross miscarriage of justice” in its judgment upholding the validity of section 377.
It had contended that 2013 amendment to section 375, dealing with rape, had held consensual sex between an adult male and woman was not an offence, and by implication, no longer prohibited. Thus section 377 now effectively only criminalises all forms of penetrative sex, including, penile-anal sex and penile oral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of the consarticle 14 of the constitution.
It had said that the amendments were carried out after the judgment in the gay sex case was reserved and the parties did not have a chance to address the court on the issue, and the court ought to have heard the parties on the effect of the amendments.
The impugned judgment, it said, “reflects an issue bias against the LGBT persons, as evident from such observations like “the so-called rights of LGBT persons” and “miniscule fraction of the country’s population” which vitiates the judgment and renders it a nullity.