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When governments hide in closet, court readies bench on gay rights - Day of hope with rare decisions

Published On : 03 Feb 2016

New Delhi, (The Telegraph): A five-judge constitution bench will examine the validity of a legal clause that criminalises "unnatural sex", the Supreme Court decided today during a hearing that lasted less than 10 minutes but re-ignited hope that a long wait for a basic right may end soon.

Today's court order - the first instance of curative petitions being referred to a constitution bench - does not mean gay sex is legal in the country but the reference is a remarkable milestone in the long and arduous crusade for gay rights.

The decision suggests the Supreme Court is not averse to revisiting its own conclusion in 2013 that Section 377 of the Indian Penal Code, which outlaws unnatural sexual intercourse and makes it an offence punishable with at least 10 years in jail, is constitutionally valid.

The order also means that the judiciary has taken up the responsibility to decide on the fate of the law - an intervention that stands in sharp contrast with the silence of the executive and legislature that have chosen to sweep under the carpet the trauma affecting an estimated six million households in India.

In 2013, the apex court had left the question of repealing the statutory provision to Parliament. However, neither the UPA government nor its NDA successor took a decision.

Today, a bench headed by Chief Justice T.S. Thakur and two other senior-most judges - Justices A.R. Dave and J.S. Khehar - heard the curative petition in open court, unlike the normal practice of holding the session in the closed chambers of the judges.

The entire matter, including whether notices would be issued to all stakeholders, has been left to the five-judge bench to decide.

Rights activists welcomed the decision to refer the matter to the constitution bench, adding that the Centre would now have to make clear its stand.

Said Anis Ray, a rights activist based in Calcutta: "What I would like to know now is the stand of this government. We know what the Church thinks, what the Muslim law board thinks. But we are in the dark about the government's stand.

"It has been talking in two voices - (home minister) Rajnath Singh has been for criminalisation while (finance minister) Arun Jaitley has publicly batted for decriminalisation. Now the time has come for the government to take a call."#

BJP sources said in New Delhi that the government's views were reflected in the stand taken by Jaitley. His views are at variance with that of some leaders of the Sangh parivar as well as politicians belonging to several parties.

Some Hindu religious groups have echoed Christian, Muslim and Sikh community groups in justifying IPC Section 377 on the ground that it is against the tenets of their respective religions.

The curative petitions had been filed by the Naz Foundation, an NGO, and a host of activists, challenging the apex court order that had struck down a 2009 high court verdict decriminalising consensual gay sex.

A curative petition is the last resort for a litigant to ventilate a grievance before the judiciary, which is filed after an appeal and review petitions are dismissed. Although the Supreme Court had agreed on April 2, 2014, to conduct an open hearing on the curative petitions, it took nearly two years for the petitions to come up today.

Curative petitions are mostly dismissed at the threshold itself. But in this case, the apex court not only conducted an open hearing but also referred the matter to a constitution bench, according high priority.

Normally, the judges who passed the earlier judgment or dealt with a review petition are included in the curative bench. But in this case, all the judges who had handled the case in 2013 have retired.

The proceedings commenced at 3pm in the sprawling Hall No. 1 of the Chief Justice, which was packed with advocates, activists and onlookers.

The three-judge bench refrained from issuing any formal notice to the Union government or others. Senior counsel Kapil Sibal and Anand Grover appeared for the activists.

Sibal told the bench in his brief submission: "The issue involves the right of gays who are facing indignity and are stigmatised.... The (2013) judgment has not only bound the present generation but also future generations. This is a precious private right available under Article 19(1) (right to free speech and expression)".

The bench asked if anyone was opposing the curative petitions. One of the lawyers appearing for a denomination of the Church said he was opposing the curative petitions. He said the Muslim Personal Law Board shared the view and hence the Union government and those opposing should be heard before any order is passed.

Justice Thakur, heading the bench, said: "Since several constitutional issues are sought to be agitated in these petitions, let the matter be placed before the Chief Justice of India for posting before a five-judge bench.

"We are not inclined to issue notices. It is for the constitution bench to decide on the issue."

Photo credit: The Telegraph

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