A three-judge Bench, comprising Chief Justice TS Thakur, Justices AR Dave and JS Khehar, said since important issues concerning the Constitution were involved in the matter, it would be appropriate to refer the issue to a five-judge Constitution Bench. The Bench said the larger Bench would be constituted soon.
The Bench was told there were eight curative petitions, seeking re-examination of the order on the review petition and the December 11, 2013, judgement by which the Delhi high court's verdict de-criminalising Section 377 (unnatural sexual offences) of the IPC was set aside. The Bench was informed that the churches of North India and the All-India Muslim Personal Law Board were against decriminalising homosexuality.
Senior counsel Kapil Sibal, arguing for decriminalising Section 377, submitted that huge constitutional issues were involved in the matter. A battery of senior lawyers appeared in the case. He submitted that the issue concerned the "most private and the most precious" part of life i.e. right to sexuality within the four corners of your domain, which has been held as unconstitutional. "By this judgement, you have bound the present and future generations to dignity and stigma," he submitted. He added that human sexuality should not be stigmatised.
The Bench said such an important issue needs to go to a Constitution Bench of five judges. The Bench was informed that the High Court judgement was not challenged by the Centre, which had left it to the Apex Court to take a call on the issue.
However, when the High Court judgement was overturned by the Supreme Court, the Centre had preferred a review petition, which was dismissed.
The Bench was hearing the curative petition filed by gay rights activists and NGO Naz Foundation against the Apex Court's December 11, 2013, judgement upholding validity of section 377 of IPC and the January 2014 order by which it had dismissed a batch 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. In rare cases, such petitions are given an open court hearing.
The petitioners, including the NGO, which has been spearheading the legal battle on behalf of lesbian, gay, bisexual and transgender (LGBT) community, had contended that there was an error in the judgement delivered on December 11, 2013 as it was based on an old law.
The Apex Court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict, declaring gay sex an offence with punishment up to life imprisonment. While setting aside the July 2, 2009, verdict of the Delhi high court, the Apex Court had held that Section 377 of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court was legally unsustainable.
Activists hail move to re-examine verdict
The Supreme Court's move to order re-examination of its verdict, criminalising sexual activity between same sex consenting adults under Section 377 of IPC, has been hailed by activists as "hope of upholding democracy" in the country. "I am happy that the court has referred the matter to a five-judge Bench. Now, the court is going to look at the constitutional arguments to decriminalise homosexuality, hopes have been raised that if the petition has been accepted it means they see some merit in it. Let's hope this is the last leg of the fight," said Naz Foundation director Anjali Gopalan.
Welcoming the order, transgender rights activist Laxmi Narayan Tripathi, said: "Actually the court could have struck it down and asked the government to react on it to assert that democracy prevails in the country and the right of expression, right to life and dignity is still there. But it is interesting how the matter has been referred to a five-judge Bench".