The apex court today referred the various curative pleas seeking re-examination of its 2013 verdict re-criminalising homosexuality under section 377 IPC, to a 5-judge constitution bench.New Delhi: The Supreme Court’s decision to move towards re-examination of its verdict criminalising sexual activity between consenting adults of the same sex under section 377 of the IPC was widely welcomed by activists today as a sign of hope upholding democracy in the country.
“I am happy that the court has referred the matter to a five-judge bench. Now, the court is going to look at the constitutional arguments to decriminalise homosexuality, hopes have been raised that if the petition has been accepted that means they see some merit in it. Let’s hope this is the last leg of the fight,” said LGBT activist and Naz Foundation Director Anjali Gopalan.
Welcoming the order, transgender rights activist Laxmi Narayan Tripathi, said, “actually the court could have struck it down and asked the government to react on it to assert that democracy prevails in the country and the right of expression, right to life and dignity is still there. But it is interesting how the matter has been referred to a five-judge bench”.
The apex court today referred the various curative pleas seeking re-examination of its 2013 verdict re-criminalising homosexuality under section 377 IPC, to a 5-judge constitution bench.
The court was hearing the curative petitions filed by gay rights activists and NGO Naz Foundation against the apex court’s December 11, 2013 judgement upholding the validity of section 377 (unnatural sexual offences) of the IPC and the January 2014 order by which it had dismissed a batch of review petitions.
The apex court decision reversed an earlier landmark judgment of the Delhi high court which had struck down section 377 as an infringement of the rights of citizens.
A curative petition is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber. In rare cases, such petitions are given an open court hearing.
Congress spokesperson Randeep Surjewala welcomed the SC move and hoped that the court would take note of the events across the globe including India and restore the dignity and honour of the LGBT community.
“We have always been told whom you want to love is a matter of choice and that personal choice must be respected by the society at large. Section 377 as far as the LGBT community is concerned needs to be decriminalised. The Delhi high court judgment was a welcome step in this direction that was reversed,” he said.
Noted lyricist Javed Akhtar said homosexual relationships are a reality and society needs to accept that.
“You cannot pretend that there is no elephant in the living room. It is a reality and most of the societies in the world have accepted it and you have to accept it. You cannot pretend there is no homosexuality and why should you pretend?” he said.
Reacting to the development, the noted actress and director Nandita Das, said, “it is an archaic law which was introduced by the British government. They have removed this law from their judiciary and we are still hanging on to it. I really hope that this law will go and people will be allowed to love.”
“We should be worried about people like Dabholkar, Kalburgi being killed for being rationalists instead of saying two people cannot love. So, I am definitely against 377 and I really hope that better sense will prevail,” she added.
Human Rights group Amnesty International also termed the Supreme Court move as a positive development.
“The Supreme Court’s decision [to admit a curative petition] on section 377 is a positive development. The apex court has another chance to correct a grave error, which continues to put LGBT people under physical, mental and legal threat,” it said in a statement.
Government yet to formulate any final view
Amidst the groundswell of public opinion in favour of decriminalisation of sexual activity between same sex consenting adults, the NDA government at the Centre has refused to clear its position on the issue.
Asked by reporters in Bangalore for his reaction to Tuesday’s development, Union minister M Venkaiah Naidu said the government had not formulated any view on the matter.
“It is a humane issue, we have to study various aspects and take a final view. The debate is on…,” he told reporters.
He said, “The government has, to my knowledge, not formulated any final view, but it is now before the court, let us await what is going to happen.”
Asked about his personal view, he said, “I have no personal view, because as a minister people should not talk about personal view.”
At least one senior minister, Arun Jaitley, has said recently that homosexuality should decriminalised.