The apex court had, a few months ago, indicated that Section 377 of the IPC deserves a re-look and agreed to post a batch of curative petitions filed before a Constitution Bench

A Supreme Court Bench on Wednesday sent a plea seeking quashing of a penal provision that criminalises consensual sexual acts between adults of the same sex before the Chief Justice of India to decide whether a Constitution Bench should hear the appeal.

Arguing before a Bench, led by Justice S.A. Bobde, senior advocate Arvind Dattar said this is the first time individual members of the community have moved the Supreme Court directly to appeal for their right to sexual freedom.

The Court pointed out that a Bench led by Chief Justice of India T.S. Thakur had, a few months ago, already indicated that Section 377 of the IPC, which criminalises gay sex, deserves a re-look and agreed to post a batch of curative petitions filed by NGOs like Naz Foundation before a Constitution Bench.

Justice Bobde observed that the fresh petition by the celebrities be referred to Chief Justice Thakur for a decision on whether it should be tagged along with the curative petitions and further referred to a Constitution Bench.

The petition has been filed by well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. They contend that Section 377 is unconstitutional and a constriction on their right to sexual preferences.

Earlier observations

The fight for removing Section 377, earlier upheld by the apex court in a judgment, found a second lease of life when a Bench led by the senior-most judges of the apex court led by Chief Justice Thakur decided that the curative petitions need to re-heard in depth and has various dimensions to it.

Chief Justice Thakur and Justices Anil R. Dave and J.S. Khehar had given credence to arguments that the threat imposed by Section 377 amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.

Chief Justice Thakur had said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly.

Rebelling against its own procedural conventions in dealing with curative pleas, the Supreme Court had indicated its openness to re-consider the constitutionality of Section 377 with new eyes.

Chief Justice Thakur had told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new Bench may not limit itself to the narrow confines of the curative law — the Curative Bench will only entertain if petitioners prove that its review verdict violated principles of natural justice and the judges were biased — and opt for a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.

The indication came when Mr. Grover asked whether the three judges would also be present in the “curative Bench”. As per the apex court's Rupa Hurra judgment in 2002, the Bench considering curative pleas should necessarily have the three top judges of the Supreme Court.

“Your Lordships, a person's sexuality is his or her most precious, most private of rights... Any provision that penalises an adult persons' expression of consensual sexuality in private is significantly unconstitutional,” senior advocate Kapil Sibal had said in his opening argument before the Chief Justice's Bench.

The open court hearing had been the fruit of two years of waiting since the batch of eight curative petitions was filed in March 2014 by parents, civil society, scientific and LGBT rights organisations against a January 28, 2014 apex court verdict dismissing their review petitions on the ground that Section 377 is Constitutional and applies to sexual acts irrespective of age or consent of the parties.

The Review Bench, in January 2014, had agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally accepted 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.

The High Court, led by its then Chief Justice A.P. Shah, had read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.

“Your past judgments not only affect the present but will bind future generations to a life of indignity and stigma,” Mr. Sibal submitted. “If not corrected now, your verdicts may result in “immense public injury”, he argued.

Mr. Sibal, joined by Mr. Grover, argued that the apex court struck down the 2009 Delhi HC judgement despite the Centre not challenging the lower court's verdict.

“The matter is of such importance that it should go to a five-judge bench,” Chief Justice Thakur responded. Meanwhile, when Chief Justice Thakur asked if there was anyone opposing the petitioners, the Apostolic Churches Alliance made it clear that “homosexuality is an abomination in the Bible” and decriminalisation of Section 377 would lead to legalisation of homosexuality. It argued that such a situation would make the Prevention of Immoral Trafficking Act redundant.

The petitioners had contended that homosexuality was not a mental disorder, but a normal and natural variant of human sexuality.

Even the International Classification of Diseases (ICD-10) of the World Health Organisation (WHO) and the Diagnostic and Statistical Manual (DSM IV) of the American Psychiatric Association (APA), the globally accepted standards for classification of mental health, no longer considered non-peno-vaginal sex between consenting adults as mental disorders or illness. Their expert opinion to the court included that “homosexuals had no choice in their attraction to persons of the same sex and criminalisation of LGBT persons adversely affected their mental health.”

“By penalising the only form of sexual intercourse available to LGBT persons — that is, non-peno vaginal — Section 377 entirely denies sexual intercourse to the class of LGBT persons,” they had argued.