Constitution Bench to start hearing pleas against Section 377 IPC today

The five-judge Bench will examine a batch of petitions claiming that the 2013 judgment was wrong.

A Constitution Bench will begin to re-visit its December 2013 verdict of the Supreme Court, which upheld the criminalisation of gay sex and dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation.

The five-judge Bench — headed by Chief Justice of India Dipak Misra and comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra — will examine a batch of petitions claiming that the 2013 judgment was wrong.

The Supreme Court had prima facie agreed with the petitioners when a three-judge Bench, led by Chief Justice Misra, while referring the petitions to a Constitution Bench, observed that “what is natural for one may not be natural for the other, but the confines of law cannot trample or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution”.

The court had agreed that the concept of consensual sex may require more protection. On Monday, it even rejected a plea by the government to defer the hearings by four weeks.

The curative petitions against the December 2013 verdict on the constitutionality of 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, won a new life in 2016 when a Bench led by then Chief Justice of India T.S. Thakur indicated that the question required a possible back-to-roots, in-depth hearing.

The fight against Section 377 also got a major boost when a nine-judge Bench of the Supreme Court, while upholding the right to privacy as a fundamental right intrinsic to life and liberty, ripped apart the 2013 judgment.

The nine-judge Bench had observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity”.

The Delhi High Court had declared Section 377 unconstitutional, and said it was in violation of the fundamental rights. The High Court, led by its then Chief Justice A.P. Shah, had read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.

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