A two-judge bench of the Supreme Court on Wednesday referred a petition filed by LGBT celebrities seeking to legalise gay sex to the Chief Justice of India (CJI), saying the matter was already pending before a constitution bench.
On behalf of LGBT celebs – chef Ritu Dalmia, hotelier Aman Nath, dancer NS Johar, journalist Sunil Mehra and business executive Ayesha Kapur, senior advocate Arvind Datar contended it was the first time that the affected people themselves approached the court against the colonial era law that criminalised homosexuality.
A bench of justice SA Bobde and justice Ashok Bhushan said the matter was already pending before a constitution bench and referred it to CJI TS Thakur for “appropriate orders”.
Now, the petition filed by the celebs is likely to be taken up along with a curative petition on the issue that was sent to a constitution bench in February this year.
The Supreme Court had in December 2013 reversed a Delhi high court verdict that de-criminalised consensual homosexual acts. The high court in July 2009 had declared unconstitutional a part of Section 377 of the Indian Penal Code that criminalises unnatural sex, saying “the section denies a gay person a right to full personhood…”
Though it overturned the high court order, the Supreme Court left it to Parliament to take the final call on the controversial law. The majority view in the political class is against relaxing Section 377. Several religious groups, too, are of the same opinion.
In their petition, LGBT celebs contended that “Despite our achievements and contributions to India in various fields, we are being denied the right to sexuality, the most basic and inherent of fundamental rights.”
The Supreme Court is already seized of the matter and all the curative petitions seeking a review of its 2013 verdict - described by activists as regressive – have been referred to a five-judge constitution bench.
A curative petition is the last legal recourse available after a litigant exhausts all remedies such as appeals and review petition.
Eight such petitions are pending with the bench seeking review of the judgment that upheld the constitutional validity of Section 377, which prescribes a maximum punishment of life imprisonment for “unnatural sex”.