Quashing 377 IPC: SC refuses urgent hearing to Celebrities’ plea; Refers it to CJI bench

A two judge bench of the Supreme Court today refused immediate hearing to celebrities chef Ritu Dalmia, hotelier Aman Nath and dancer N S Johar who approached the Supreme Court seeking quashing of section 377 of the IPC which criminalises homosexuality and said it would place the fresh plea before the bench headed by Chief Justice T S Thakur who may take a call if to hear it separately or tagged along with curative petitions by Naz Foundation and others to be heard by a constitution bench.

Supreme Court in February this year had provided a glimmer of hope for the LGBT community by promising a re-look into re-criminalisation of homosexual acts

A bench of Justices S A Bobde and Ashok Bhushan said: “We are informed that another bench headed by the Chief justice is hearing the matter. Registry may place this matter before the concerned court”.

Earlier the bench told senior lawyer Arvind Datar who appeared for the petitioners: “we are not inclined to hear it now. We will keep it pending till a constitution bench decides on it”. But Datar tried saying that in this case all petitioners were victims seeking immediate relief and there is no NGO representing the community. But the bench was not convinced and said “No if you want to go there you go there or else we keep it pending”. Finally Datar agreed to bench’s suggestion to send the petition to the bench headed by Chief Justice which will soon constitute a constitution bench on the issue

The celebrities have sought protection of their sexual rights on the ground that it is an integral part of the fundamental right to life.

The celebrities who belong to LGBT community, in their plea, said their lives have been inexorably constricted and their rights infringed by the penal provision.

Despite their achievements and contributions to India in various fields, they are being denied the right to sexuality, the most basic and inherent of fundamental rights. Section 377 renders them criminals in their own country, the plea said.

On February 3, the Supreme Court had referred a batch of petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.

Admitting appeals filed by Naz Foundation against re-criminalising of homosexual acts by a two judge bench of the apex court in December 2013, a three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.

Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary.

The Delhi High Court had, on July 3, 2009, legalised homosexual acts between consenting adults by overturning the 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS. It had said: “As it stands, the section denies a gay person a right to full personhood…”

The HC had said section 377 will henceforth apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. But a SC bench overturned the HC verdict in December 2013 saying the Delhi High court order decriminalising homosexuality is “legally unsustainable” and only Parliament is empowered to change a law.

LGBT and human rights activists sharply criticised the judgment, saying it “would turn the clock back by centuries”.

The judgment was being viewed in India and globally as a retrograde step. The bench, which ruled that making or changing a law was the sole prerogative of Parliament, questioned why the government had not acted even 13 years after a law commission report sought deletion of the section, for which there were repeated demands.