All you need to know about the SC's decision to reopen the Section 377 debate

By Ajay Kumar

The Supreme Court of India, on 2 February heard a batch of eight curative petitions that were filed to ask the court to revisit the 2013 Judgement overturning the Delhi High Court verdict in the Naz Foundation v National Capital Territory of Delhi.

A curative petition is a relatively new process by which the Supreme Court may choose to exercise it's inherent powers to review it's own decision. Since it's introduction in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr (2002) 4 SCC 388 the Supreme Court has only exercised it's curative powers three times.

 All you need to know about the SCs decision to reopen the Section 377 debate

Representational image. AFP

The Supreme Court, stating that the petitions raise "significant questions of constitutional law" referred the petitions to a five-judge bench to determine the said questions. However, this does give some hope in the litigation fight against Section 377 of the IPC. A reference to a five-judge bench means the court was satisfied that there was a "substantial question of constitutional law" that arose out of the eight petitions before it. Unfortunately the copy of the order on the reference is not out, so the full terms of reference cannot be read. Read this Firstpost article and this one to get a good sense of what went down.

One aspect that is worth noting is that the judgement in Suresh Kumar Kaushal v Naz Foundation (Civil Appeal No 10972 of 2013) may contradict the later judgement in National Legal Services Authority v Union of India (WP (C) of 2012) in so far as NLSA went on to make observations regarding sexuality and gender identity and, in particular went on to make observations regarding the use of 377.

It is pertinent to note that both these judgements were delivered by a bench of equal strength. Normally in these cases where there is a difference of opinion on a point of law between two benches of an equal strength, a larger bench may be constituted by the Chief Justice to iron out the differences. But where there may be no prima facie difference on a point of law in the two judgements; it appears that the two judgements have appreciated ground realties very differently.

Since the bench hearing the matter yesterday, was satisfied that there was a significant question of Constitutional Law that was raised in the petitions, the petitions were referred to a five-judge bench in terms of Article 143(3) of the Constitution. This Article provides that an substantive issue of constitutional law should resolved by five judges of the Supreme Court. A five-judge bench is called a Constitutional Bench.

However, it must be noted that the Bench has not issued notice to the Central Government in the matter and has referred the question on admission of the curative to the five-judge bench. This reference though was not mandatory, which is why the reference raises some hope that the curative may be admitted.

Before a matter may be heard by the Supreme Court in its Appellate Jurisdiction the matter must be admitted by the court i.e the court must agree to hear the case. Once the court agrees to hear the matter, it issues notice to the concerned parties. The court has not issued notice yet but referred the matter to a five-judge bench. This means the question of admission is still open. What gives hope is that the court has constituted a five judge bench to look into the issue. This is important as the following are the possible scenarios now:

A. The Constitution bench admits the Curative and proceeds to review the judgement in Kaushal's case on merits. Which it can do as it is a five-judge bench and has the power to review the order of a Division Bench. The bench may either confirm the verdict in Kaushal or reverse it.


B. The Constitution Bench declines to hear the Curative which means Kaushal remains good law.

So the question is, is there something for gay rights activists to be hopeful about? Well, yes and no.

The ruling on 2 February caused absolutely zero change in the legal position as far as 377 is concerned. Further, the risk of the curative being denied still stands as the five judge bench may reject it outright as well.

So in terms of the fight against 377 nothing much has actually changed. What is hopeful though, is that the court has constituted a five-judge bench to look into the matter. Which means that the Court may be indicating that it is satisfied that there is a question of law wroth re-examining and has geared itself up for admission.

To explain it simply, it may not have confirmed that the party is happening, but the court has gotten dressed for one anyway.

What you should know

I am a gay person, did yesterday’s ruling change anything for me as far as 377 is concerned?

No. It did not. The Court did not stay the ruling in Kaushal. 377 is still good law in India and as such same sex sexual intercourse between two men remains unlawful.

I am a straight person, why should I care about the 377 Case?

377 can also apply to straight persons engaging in intercourse that requires the penetration of an orifice other than the vagina. Anal-Sex, oral Sex, 'handjobs' etc are all covered by 377. But sexual acts aside, 377 empowers the law to step into the bedroom of an individual and examine his sexual conduct with his consenting partner, 377 is bad on principle because the law should never be allowed to enter the bedroom.

For example, if tomorrow, with a view on population control the government made a law saying that people could only have sex on Saturdays and Sundays or a law requiring that all men sit down and pee. Sounds absurd right? These laws could survive because 377 has been allowed to survive.

It’s not about one section alone, the ramifications of holding a law like 377 valid are far and may affect almost every aspect of life that involves privacy including issues like phone-tapping, inspection of private records, search and seizure etc.

In fact as a straight person you should be concerned more about the legal ramifications of the judgement, because persecution of gay people in India is the status quo. Confirming such persecution, could actually open the door to the persecution of straight people!

So what now?

No date has been set for the five-judge bench hearing. So we sit tight and wait for the bench to be constituted.

So when can I get excited?

Wait for an order of admission (if it comes). That’s when things get really exciting before the Supreme Court and also the public debate gets re-opened. The Centre will have to take a stand on the matter if the curative is admitted. Something this government is yet to do. Things will get really exciting then.

The author is an advocate at the High Court, Bombay. He is currently a counsel at Ashlar Law. 

Updated Date: Feb 03, 2016 21:20:16 IST