Supreme Court’s rethink on Section 377

The government Section 377 of the Indian Penal Code makes sex with persons of the same gender such as sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) as a punishable by law.

The Supreme Court agreed to reconsider its judgment, stating it would refer petitions to abolish Section 377 with new eyes, to a five-member constitutional bench, which would conduct a comprehensive hearing of the issue on Tuesday.

The Curative petition is circulated to the three senior most judges to delivered the impugned judgement. The three-judge Bench constitutes of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in order to prevent abuse of its process and to cure gross miscarriage of justice.

The petitioners, including the NGO, which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community said that there was an error in the judgement delivered on December 11, as it was based on an old law.

The plea said. “The judgement was reserved on March 27, 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 which delivered the judgement.”

Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance”.

He said the 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 Bench, senior advocate Kabil Sibal submitted that a person’s sexuality was his or her most precious, most private of rights.

Many of the activists are happy about the outcome, but a senior Bharatiya Janata Party member Subramanian Swamy termed the reaction by some journalists as ‘stupid’. He tweeted “How stupid! Pro- homosexual media persons are claiming victory because SC has referred Section 377 IPC to a Constitutional Bench!”

Most of the activists and researchers argue. They said it violates an individual’s fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India.