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Should gay sex be legalised? Supreme Court reopens Sec 377 debate?

New Delhi: The Supreme Court (SC) agreed on Tuesday to review a decision which criminalises gay sex, sparking hope among the Lesbian, Gay, Bisexual and Transgender (LGBT) community.

Activists of the LGBT community at the Humsafar Trust in Vakola on Tuesday are all happy after the SC move. (dna – Fariha Farooqui)
Same sex between consenting adults is now a crime under Section 377 (unnatural sexual offence) of the IPC.
Terming the issue as an “important one concerning the Constitution,” a bench headed by the Chief Justice of India T S Thakur referred the curative petition to be decided by a constitution bench of five judges.

Interestingly, the Narendra Modi government has not opposed the plea, though some of the law officers were present in the court during the hearing.
Appearing for the petitioner, former law minister and senior Congress leader, Kapil Sibal, cited Article 19, 1 (a) of the Constitution.
He said that “the issue concerns the most private and the most precious part of life — right to sexuality within the four corners of your domain — which has been held as unconstitutional.”
“This court’s 2013 judgment is binding on the present and future generations’ dignity and stigma,” he submitted soon after the bench, also comprising justices A R Dave and J S Khehar, said that there were eight curative petitions seeking re-examination of its December 11, 2013, judgement.
It had reversed a Delhi High Court (HC) verdict decriminalising the penal provision.
He further submitted that human sexuality should not be stigmatised and sought the court to set aside its earlier judgment.
To his submission, the bench asked: “Is there anyone opposing the curative plea?”
The counsel for Muslim Personal Law Board and Churches of India have told the bench that they oppose the de-criminalisation of the legal provision and would put forth their grounds during the final hearing of the plea.
There was also no opposition from the Centre. One of the government counsels, who was present in the court, told dna that “no notice has been issued to the government and it will respond at an appropriate time.”
Sibal informed the bench that the HC’s 2009 judgment was not challenged by the Centre, which had left it to the apex court to take a call on the issue. The Centre had also preferred a review petition, which was dismissed by the apex court last year.
After a short hearing, the bench said: “The issue is important and needs to go to a constitution bench of five judges.”
The curative petition was filed by gay rights activists and NGO Naz Foundation against the apex court’s December 11, 2013, judgement, upholding the validity of Section 377 and the January 2014 order, by which it had dismissed a batch of review petitions.

A curative petition is the last judicial resort available for redressal of grievances in a court, which is normally decided by judges in chamber. The CJI will form the five-judge bench soon.

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