SC refers gay sex ban matter to 5-judge bench; LGBT activists cheer

he Supreme Court on Tuesday reopened the debate over a colonial-era ban on homosexuality, referring eight curative petitions challenging its earlier verdict to a five-judge bench.

The SC said the case involves important constitutional issues. “It is definitely a step forward,” lawyer Anand Grover said as activists gathered outside the courtroom cheered.

“This is a progressive step in the right direction; it is a corrective measure,” LGBT activist Mohnish said after the hearing. “For today, this is good news,” another activist, Elena, said.

A bench headed by Chief Justice of India TS Thakur had earlier agreed to hear the curative petition against the apex court’s December 2013 judgment which had upheld the validity of section 377, which criminalises sexual activities considered “against the order of nature”, arguably including the homosexual acts, and a January 2014 order by which it had dismissed a bunch of review petitions.

“Whoever voluntarily has carnal inter¬course 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,” the Section 377, which came into force in 1862, says.

The petitioners include the NGO Naz Foundation which works for the Lesbian, Gay, Bisexual, and Transgender (LGBT) community.

The plea had stated that the judgement was reserved on March 27, 2012, but a verdict was delivered after around 21 months and a lot of changes took place during this period, including amendment in laws which were not considered by the bench which delivered the judgement.

The gay rights activists had said that thousands of men and women disclosed their sexual identity during the past four years after the Delhi high court decriminalised gay sex in 2009, and they were now facing the threat of being prosecuted.

The Delhi HC had decriminalised consensual homosexual acts in private by declaring a part of Section 377 that criminalises unnatural sex as unconstitutional, saying “the section denies a gay person a right to full personhood…”

The apex court chose to reverse the verdict in 2013 by upholding the constitutional validity of Section 377 and had put the ball in Parliament’s court, saying it was for the legislature to take a call on the desirability of the controversial provision.

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