Supreme Court refers gay sex ban to constitution bench, activists cheer | india | Hindustan Times
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Supreme Court refers gay sex ban to constitution bench, activists cheer

india Updated: Feb 03, 2016 00:58 IST
HT Correspondent
HT Correspondent
Hindustan Times
SC on homosexuality

The apex court set up a five-judge panel to reconsider its 2013 ruling that only Parliament can change the 1861 law banning gay sex.(Reuters)

The Supreme Court agreed on Tuesday to re-examine a colonial-era law that criminalises homosexual acts and referred the matter to a five-judge bench, a move cheered by the gay community even as many activists cautioned they were a long way from living openly.

A three-judge bench led by chief justice TS Thakur said it would be appropriate to refer the issue to a five-judge bench because it involved issues concerning the country’s Constitution.

In 2009, the Delhi high court declared unconstitutional section 377 of the Indian Penal Code, which calls gay sex “against the order of nature” and makes it punishable by up to a decade in prison. But the verdict was overturned four years later by the Supreme Court, saying only Parliament could change the 1861 law. The Supreme Court had refused to review its order in 2014.

Activists then sought reconsideration of the judgment through eight curative petitions — the last legal recourse available to litigants — filed by noted film-maker Shyam Benegal, the Naz Foundation and others.

Read: All you need to know about Section 377

Tuesday’s move by the Supreme Court is significant because it agreed to hear curative petitions in an open court, a departure from the practice of not hearing oral submissions on such pleas. The move is also being seen as judicial acknowledgement of the changing social realities in a country that still remains widely conservative.

Gay activists cheered the court decision and said they were hopeful the verdict would ultimately go in their favour and they would have the chance to live openly.

“It is definitely a step forward,” lawyer Anand Grover said as activists, many of them in colourful clothes and masks, broke into spontaneous singing and dancing outside the court premises.

While the Congress, the CPM and some smaller parties have openly supported decriminalising gay sex, the NDA government is still undecided. Senior BJP leader Arun Jaitley had in his personal capacity supported the Delhi high court verdict decriminalising homosexuality.

Read | Why can’t homosexuality be a ground for divorce, suggests Madras HC

Shortly after the Supreme Court hearing on Tuesday, Union minister M Venkaiah Naidu told reporters in Bengaluru that gay rights was a “humane issue” and the government had still not formulated a view on the matter. “We have to study various aspects and take a final view. The debate is on,” he said.

“The government has, to my knowledge, not formulated any final view, but it is now before the court, let us await what is going to happen,” he said, adding, “I have no personal view, because as a minister people should not talk about personal view.”

But some cautioned that the fight for gay rights in India was far from over, saying the success rate of curative petitions in the country was less than 1%.

“It is not the final victory, we still have a long way to go,” gay rights leader Ashok Row Kavi told HT.