NEW DELHI: The Supreme Court on Tuesday referred a batch of petitions challenging Section 377 of the IPC, a colonial law criminalising certain consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) and heterosexual adults in private, to a five-judge Constitution Bench for hearing.
A three-judge bench comprising Chief Justice T S Thakur and Justices A R Dave and J S Khehar said the matter involved important issues concerning the scope of human relationships and needed to be heard by a larger bench.
The judges said the larger bench would be constituted in the future. They, however, did not issue a notice to the Centre on the petitions, leaving it to the Constitution bench to do so if it found it necessary.
The bench told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new bench would not limit itself to the narrow confines of the curative law and conduct a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.
During the hearing, senior counsel Kapil Sibal, arguing against IPC Section 377, said, “A person’s sexuality is his or her most precious, most private of rights. Any provision that penalises an adult person’s expression of consensual sexuality in private is significantly unconstitutional.”
The contorversial IPC section, introduced by the British Raj in 1860, criminalises sexual activity between individuals of the same sex (as well as certain acts between heterosexuals) as being “unnatural” and “against the order of nature”.
Sibal told the court that there were eight curative petitions seeking re-examination of the order on the review petition and the apex court’s December 11, 2013 judgment by which the Delhi High Court verdict annulling Section 377 was set aside. The petitions were filed in March 2014 by parents, civilsociety, scientific and LGBT rights organisations against a January 28, 2014 apex court verdict that dismissed their review petitions, saying that Section 377 was constitutional and applied to sexual acts irrespective of the age or consent of the parties involved.
“By this judgment, you have bound the present and future generations to dignity and stigma. If not corrected now, your verdicts may result in immense public injury,” Sibal added.
The review in January 2014 agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally hailed 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.
When Justice Thakur asked if there was anyone opposing the petitioners, the Apostalic Churches Alliance said “homosexuality is an abomination in the Bible” and the decriminalisation of Section 377 would lead to the legalisation of homosexuality. The Christian organisation argued that such a situation would make the Prevention of Immoral Trafficking Act redundant.
According to the curative petition, homosexuality is not a mental disorder, but a normal and natural variant of human sexuality.
The petitions argue that the Supreme Court, in the past two verdicts, had reached no clear consensus on the purpose of continuing with the colonial-era law. They argue that the court committed a “patent error of law” in concluding there have been only 200 prosecutions in over 150 years under Section 377.