February,2,2016: The Apex Court said several “constitutional dimensions of importance” were ingrained in the challenge against Section 377, which criminalised homosexuality. Moved by arguments that a person cannot be branded a criminal for his sexuality, the Supreme Court on Tuesday referred a batch of petitions challenging Section 377 of IPC, a colonial era law criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for in-depth hearing.
A three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave full 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 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.
Giving an indication that the Supreme Court will consider the constitutionality of Section 377 with new eyes, Chief Justice Thakur told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new Bench would not limit itself to the narrow confines of the curative law and conduct 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 Rupa Hurra judgment, the bench considering curative pleas should necessarily have the three top judges of the Supreme Court.
With this, what had seemed to have been the last strand of hope for the decade-old legal fight for LGBT rights has suddenly transformed into a full-fledged battle cry with the Supreme Court indirectly accepting that its past decisions upholding Section 377 IPC needs a thorough relook.
“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 said in his opening argument to the Bench.
There was galaxy of senior lawyers representing the petitioners, including senior advocates K.K. Venugopal, Ashok Desai, Shyam Divan, Anand Grover and Colin Gonsalves.
The open court hearing was 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. The Bench however did not issue notice to the Centre on the petitions, leaving it to the future Constitution Bench to do so, if found necessary.
Meanwhile, when Chief Justice Thakur asked if there was anyone opposing the petitioners, the Apostalic 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 contend 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.”
The petitions argue that the Supreme Court, in the past two verdicts, had reached no clear consensus on the very purpose of continuing with the colonial-era Section 377. They argue that the court committed a “patent error of law” in concluding that there have been only 200 prosecutions in over 150 years under Section 377. “In so doing, the impugned judgement [January 2014] introduces a numerical requirement for the protections of Chapter III (Fundamental Rights) of the Constitution, whereas it is long settled that fundamental rights of miniscule minorities, even minorities of one, are entitled to full protection,” they contend.
They further contend that the Supreme Court went wrong in concluding that Section 377 only identifies certain acts as offences and does not criminalise LGBT people themselves.
“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,” the petitioners contend.
They argue that the restraint shown by Parliament in not discussing Section 377 during the debates on rape law in the Criminal Law (Amendment) Act, 2013, was misconstrued by the court as a legislative “endorsement of the unconstitutional provision”.
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