Larger Constitutional bench to decide on Section 377

SansadTV Bureau

Supreme Court of India File Photo- PTI

The Supreme Court on Tuesday referred curative petition challenging criminalisation of homosexuality under Section 377 of Indian Penal Code to a five judge constitutional bench of the Supreme Court.

A three-judge bench, headed by Chief Justice T S Thakur, Justices Anil R Dave and J S. Khehar heard the curative petitions filed by parents, civil society, scientific and LGBT rights organisations. Petitioners pleaded that a person should not be branded a criminal for his sexuality.

Senior Advocate, Kapil Sibal arguing for decriminalising Section 377, submitted that  constitutional issues are involved in the matter. He said the issue concerns the most private and the most precious part of life that is right to sexuality within the four corners of your domain.

After hearing Sibal’s arguments, the bench said the matter came before the court involves “constitutional dimensions of importance”and it would be appropriate to refer the issue to a five-judge Constitution bench.

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 where the apex court set aside Delhi High Court’s verdict decriminalising section 377 (unnatural sexual offences) of the IPC.

The bench was informed that the high court judgement was not challenged by the Centre which had left it for 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 the review petition which was dismissed.

Political parties and individual activists have responded positively to the decision of the court.

BJP leader Nalin Kohli said, “It is good for the LGBT community and those support the cause.” Congress leader Nagma called for decriminalising homosexuality.

Social activist Ranjana Kumar said, “Every person should have the right to choose his/ her sexual orientation.”

A curative petition is the last judicial resort available grievance redressal in courts. In rare cases, such petitions are given an open court hearing.

The petitioners have been spearheading the legal battle on behalf of lesbian, gay, bisexual and transgender (LGBT) communities for more than ten years. They had challenged the judgement delivered by the Supreme Court on December 11, 2013.