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SC Admits Curative Petition on Section 377, Refers It To 5 Judge Bench

The Supreme Court’s decision to reconsider  and to refer the curative petition on Section 377 to a constitutional bench of 5 judges may be viewed as a positive stand supporting LGBT Rights. Chief Justice TS Thakur was one among the three senior most judges who formed the jury for the open court hearing. Mr Kapil Sibal represented the Voices Against 377.  They came to a unanimous decision that this particular case needs the attention of a larger constitutional bench of five judges. Thus Section 377 is once again open to debate, enabling the petitioners to put forward their views before the bench. One must remember that this is the fourth Curative Petition that is given admission by the apex court. A report in the Times Of India shows the statement the bench: “There are important constitutional questions involved in the issue relating to decriminalizing consensual gay sex within the privacy of a house.” The next hearing is still unannounced and the bench has not been formed as of yet. Muslim Personal Law Board and Churches of India were parties of opposition to the curative petition today’s hearing today.

The LGBT Rights legal battle is being fought for a long time in India’s history. In 2009, Dehli High Court had passed a judgement that favoured consensual sex between people who were 18 years of age. In December 2013, a bench of two judges went against this decision, thus viewing consensual sex and homosexuality with hostility. Attempts at petition went disregarded. However the battle continued as the undaunted petitioners filed a curative petition before the court in April 2014. The 2013 judgement passed by the Supreme Court was invited contempt for a limited interpretation of the law. However the court had given the Parliament the authority to decide on the Section. Dr Shashi Tharoor’s efforts of amending the law by introducing a Private Member’s Bill in the winter session of the Parliament in 2015, December was not encouraged by MPs belonging to the BJP. The bill was opposed at the stage of introduction and defeated 71-24.

The SC ruling of section 377 of IPC that criminalizes same sex partnership or relationship is clearly a case of the arbitrary functioning of and suppression of one’s natural sexual orientation by the state. For once and for all, the highest court of the country needs to understand that homosexuality is not unnatural, neither is it a disease as propagated by homophobic fanatics . This act is in itself a collapse of the machinery of justice, proving itself incapable of rendering institutional justice.

By legalising section 377 of the IPC, the SC is proving its lack of farsightedness because these decisions are not going to deter the LGBT from reclaiming their rights, or put a stop to protests and further legal battles to be fought. Rather it will bear heavy impact upon the mental and sexual health of the nation and add fuel to the spread of HIV/AIDS. By making same sex relations a criminal offence, the SC has misconstrued the notion of what constitutes crime, and the nature of crime. It has encouraged debasement and the practice of inhuman atrocities against the LGBT.

According to a report in The Hindu, the court stated that “several constitutional challenges of importance” were embedded in the battle against 377. The Hindu also reported Kapil Sibal’s statement, regarding the verdict passed by the court : “Your Lordships, a person’s sexuality is his or her most precious, most private of rights… Any provision that penalises an adult persons’ expression of consensual sexuality in private is significantly unconstitutional.”


By Swastisha Mukherjee & edited by Manisha 
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