Indian Supreme Court refers homosexuality plea to Constitution bench

The Supreme Court of India will hear petition seeking a relook at a verdict upholding the validity of Indian Penal Code's Section 377, which criminalises homosexuality.

>>IANS/bdnews24.com
Published : 2 Feb 2016, 06:33 PM
Updated : 2 Feb 2016, 06:38 PM

A bench of three senior-most judges referred the curative petition to a larger Constitution bench of five judges on Tuesday.

The three senior-most judges are Chief Justice TS Thakur, Justice Anil R Dave and Justice Jagdish Singh Khehar.

"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 to the five judges bench," ordered the bench.

The court did not issue any notice, leaving it for the larger bench to take a call.
Senior counsel Kapil Sibal argued the issue involved constitutional questions of far-reaching importance and must be heard by a five judge bench.

At the outset, Sibal said that the issue before the court concerned the most private right, the most precious right of the people - the sexual right.

He argued that if it is being exercised with consensus and within four walls, then no one should have any objection.

He faulted the Dec 12, 2013 apex court judgment and subsequent Jan 28, 2014 order in a review petition upholding the validity of Section 377.

He said the issue involved the rights of the gay people who are facing indignity and stigma by the judgment of a two judge bench.

As senior counsel Anand Grover appearing for one of the eight petitioners seeking a relook at the apex court verdict sought to address the court, Chief Justice Thakur asked: "Is there anyone opposing it?"

The court was told that an organisation representing the church, the All India Muslim Personnel Law Board and a few individuals were opposing the plea.

The apex court by its December 12, 2013 order and on the review petition on January 28, 2014, upheld the validity of section 377, finding no constitutional infirmity in the penal provision that criminalises homosexuality.

It had set aside the Delhi High Court's July 2, 2009 verdict reading down section 377 and decriminalising consensual sex between the adults of same gender.

NGO Naz Foundation had moved the Supreme Court seeking to cure "gross miscarriage of justice" in its judgment upholding the validity of section 377.

The then bench of Chief Justice P Sathasivam, Justice RM Lodha, Justice HL Dattu and Justice SJ Mukhopadhaya (all retired since then) had on Apr 3, 2014, directed hearing of the curative petition in open court after they considered the plea by Naz Foundation in their chambers.