Opening a narrow window of hope for the LGBT community, the Supreme Court on Tuesday referred the petition over Section 377 of the Indian Penal Code which seeks to legalise gay sex to a five-judge constitutional bench. An apex court bench headed by Chief Justice TS Thakur referred the curative petition to the five-judge bench as senior counsel Kapil Sibal said that the issue involved a question of far-reaching constitutional importance and must be heard by a five-judge bench.
The bench said that the larger bench would be constituted in the future. The bench was told there were eight curative petitions seeking re-examination of the order on the review petition and the 11 December, 2013 judgement by which the Delhi High Court verdict de-criminalising Section 377 (unnatural sexual offences) was set aside.
The bench was also informed that the churches of northern India and All India Muslim Personal Law Board were against decriminalising homosexuality.
Sibal, arguing for decriminalising section 377 of IPC, submitted that the issue concerns the "most private and the most precious" part of life, the 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.
Further, he said that human sexuality should not be stigmatised.
Hearing his brief arguments, 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 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.
"This is a progressive step in the right direction. It is a corrective measure," ANI quoted an LGBT activist as saying after the apex court decision.
A bench headed by Chief Justice Thakur had earlier agreed to hear the curative petition filed by gay rights activists and NGO Naz Foundation against the apex court's 11 December, 2013 judgement upholding validity of section 377 and the January 2014 order, by which it had dismissed a bunch of review petitions.
Section 377 came into force in 1862 and it defines "intercourse against the order of nature", criminalising homosexual acts in the process. "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine," it says.
A curative petition is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber.
It is only in rare cases that 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 11 December, 2013 as it was based on an old law.
"The judgement was reserved on 27 March, 2012 but the verdict was delivered after around 21 months and during this period lots of changes took place including amendment in laws which were not considered by the bench that delivered the judgement," the plea had said.
Gay rights activists had said thousands from the LGBT community became open about their sexual identity during the past four years after high court decriminalised gay sex and they were now facing the threat of being prosecuted.
The Delhi High Court in 2009 had decriminalised consensual homosexual acts in private by declaring a part of Section 377, which criminalises unnatural sex, as unconstitutional. But the Supreme Court had reversed the verdict in December, 2013.
They had submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community.
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 punishable upto life imprisonment.
With inputs from agencies