Exactly two years after refusing to review its judgment upholding the validity of Section 377, which criminalizes gay sex, the Supreme Court on Tuesday opened the last narrow window of hope for the LGBT community by referring to a five-judge Constitution bench curative petitions seeking to legalize consensual sex between adults of the same sex. The Delhi high court had decriminalized homosexual relationships on July 2, 2009, but the SC reversed the decision on December 11, 2013 by reinstating the validity of Section 377.
The SC had said it was for Parliament to amend Section 377. Petitions seeking review of the December 11 judgment were rejected on January 28, 2014. Naz Foundation, `Voices Against 377' and six individuals, including the mother of an LGBT person and film maker Shyam Benegal, had filed curative petitions for a fresh look at the legality of the “oppressive law“.
On Tuesday , in the jampacked CJI's court, a three-judge bench of CJI T S Thakur and Justices A R Dave and J S Khehar took up the curative petitions for preliminary hearing. The court did not disappoint the many LGBT community members who had gathered. It did not issue notice on the petitions but said since important constitutional questions were raised, a five-judge Constitution bench would decide whether to entertain the curative petitions, which are considered on a much narrower compass then a writ petition or a PIL. Senior advocate Anand Grover, appearing for Naz Foundation, had hardly opened his argument when senior advocate Kapil Sibal, appearing for the mother of an LGBT person, gave a constitutional yet emotive cloak to the intensely debated issue.
“The most precious right to privacy linked to right to life is sexual activity. If any provision of law restrains such precious right to privacy even when the sexual relationship is consensual and happens within the four walls of the persons' homes, then it must be termed unconstitutional,“ Sibal said.
After raising the constitutional question, Sibal added, “The Supreme Court's judgment upholding Section 377 making gay sex a criminal offence has heaped indignity and stigma on the present as well as future generation who have and who would have such sexual orientation.“
Sibal said even the Union government had filed a petition seeking review of the December 11 judgment and hoped that no one opposed it. Disappointing him, advocate Manoj V George stood up and said his client, Kerala-based Apostolic Churches Alliance, opposed it along with the Muslim Personal Law Board. The churches' association opposed it mainly on religious grounds, saying “homosexuality is the negation of the creation of order in human sexuality“.
Chances of the five-judge constitution bench entertaining the curative petitions for a fresh debate is bright since finance minister Arun Jaitley, had on November 27 said it was time for the SC to reconsider the ban on gay sex. The December 11, 2013 judgment had been pronounced by a bench of Justices G S Singhvi and S J Mukhopadhaya.
The SC had said it was for Parliament to amend Section 377. Petitions seeking review of the December 11 judgment were rejected on January 28, 2014. Naz Foundation, `Voices Against 377' and six individuals, including the mother of an LGBT person and film maker Shyam Benegal, had filed curative petitions for a fresh look at the legality of the “oppressive law“.
On Tuesday , in the jampacked CJI's court, a three-judge bench of CJI T S Thakur and Justices A R Dave and J S Khehar took up the curative petitions for preliminary hearing. The court did not disappoint the many LGBT community members who had gathered. It did not issue notice on the petitions but said since important constitutional questions were raised, a five-judge Constitution bench would decide whether to entertain the curative petitions, which are considered on a much narrower compass then a writ petition or a PIL. Senior advocate Anand Grover, appearing for Naz Foundation, had hardly opened his argument when senior advocate Kapil Sibal, appearing for the mother of an LGBT person, gave a constitutional yet emotive cloak to the intensely debated issue.
“The most precious right to privacy linked to right to life is sexual activity. If any provision of law restrains such precious right to privacy even when the sexual relationship is consensual and happens within the four walls of the persons' homes, then it must be termed unconstitutional,“ Sibal said.
After raising the constitutional question, Sibal added, “The Supreme Court's judgment upholding Section 377 making gay sex a criminal offence has heaped indignity and stigma on the present as well as future generation who have and who would have such sexual orientation.“
Sibal said even the Union government had filed a petition seeking review of the December 11 judgment and hoped that no one opposed it. Disappointing him, advocate Manoj V George stood up and said his client, Kerala-based Apostolic Churches Alliance, opposed it along with the Muslim Personal Law Board. The churches' association opposed it mainly on religious grounds, saying “homosexuality is the negation of the creation of order in human sexuality“.
Chances of the five-judge constitution bench entertaining the curative petitions for a fresh debate is bright since finance minister Arun Jaitley, had on November 27 said it was time for the SC to reconsider the ban on gay sex. The December 11, 2013 judgment had been pronounced by a bench of Justices G S Singhvi and S J Mukhopadhaya.
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