Section 377: Supreme Court refers fresh petition on homosexuality to CJI

The Supreme Court on Wednesday referred the fresh PIL seeking to overturn the colonial-era law of Section 377 of the Indian Penal Code to Chief Justice of India stating that the petition is to be heard along with curative petition which is already pending in the apex court. A bench comprising Justices SA Bobde and Ashok Bhushan said the matter will be listed before a bench headed by the Chief Justice of India for appropriate orders. During the hearing, senior advocate Arvind Datar said the plea should be tagged along with the curative petition pending in the court. [caption id=“attachment_2862418” align=“alignleft” width=“380”] Representational image. Reuters[/caption] The bench then said it could be mentioned before the bench headed by Chief Justice TS Thakur. “Let the matter be listed for the Chief Justice for appropriate orders,” the bench said. Some prominent personalities – chef Ritu Dalmia, hotelier Aman Nath and dancer NS Johar – who claim to be part of the LGBT community, had approached the Supreme Court on Tuesday seeking protection of their sexual rights on the ground that it is an integral part of the fundamental right to life. In their plea, they said that their lives have been “inexorably constricted and their rights infringed” by the penal provision. “Despite their achievements and contributions to India in various fields, they are being denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 renders them criminals in their own country,” the plea said. Earlier, a Supreme Court bench headed by Chief Justice TS Thakur had agreed to hear in an open court the curative plea of NGO ‘Naz Foundation’ and some gay rights activists. On 2 February, the court referred the curative plea to a five-judge Constitution Bench for re-examination of the 2-year-old verdict by which a colonial law, criminalising consensual sexual acts between the same sex under Section 377 of IPC, was restored. The curative plea was filed against the dismissal of their petition seeking a review of the 2013 judgement of the apex court upholding the validity of section 377 (unnatural sexual offences) of IPC. Now, the gay celebrities have filed a fresh writ petition to quash the penal provision. Naz Foundation had filed a petition in December 2001 in the Delhi high court, which had on 2 July, 2009, decriminalised Section 377. After refusing twice to entertain pleas against Section 377, the SC had on 2 February referred the issue to a five-judge bench. 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 up to life imprisonment. The court had said it did not see any reason to interfere with the 11 December, 2013 verdict. It had also rejected the plea for oral hearing on the review petitions which are normally decided by judges in chamber without giving an opportunity to parties to present their views. It had revived the penal provision making gay sex an offence punishable with life imprisonment. While setting aside the 2 July, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court was legally unsustainable. With inputs from PTI