Homosexuality: 29 cases pending before Supreme Court's 5-judge bench

New Delhi: A five-judge Constitution Bench of the Supreme Court will hear curative petitions seeking re-examination of its verdict criminalising sexual activity between same sex consenting adults under section 377 of IPC.

The apex court said since important issues concerning the several “constitutional dimensions of importance” were ingrained in the challenge against Section 377 which criminalised homosexuality, “it would be appropriate to refer the issue to a five-judge Constitution bench.”

Read: Supreme Court bench to review if gay sex is a crime

As of December 2015, a total of 29 cases are pending before the constitution bench of the Supreme Court.

These cases are mostly referred by three-judge bench for adjudication by a five-judge bench. They are heard one by one depending on the issues involved for determination.

Till recently there was no fixed five-judge bench hearing. But soon after Justice T.S. Thakur took over as the Chief Justice of India, he has set up five-judge benches for regular hearings every Monday and Friday from 2 pm to 4 pm.

Normally it takes two to three weeks of continuous hearing for disposal of a matter by a Constitution bench.

At present, a five-judge bench headed by Justice Khehar is hearing the validity of President’s rule in Arunachal Pradesh and examining the scope of discretionary powers of the governor. According to wikipedia, Constitution bench is the name given to the benches of the Supreme Court which consist of at least five judges which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution.

Read: Activists happy with SC review on gay sex

Constitution benches have decided many of most important Supreme Court cases, such as A.K. Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala (basic structure doctrine) and Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

The History
The curative petition by gay activists and Naz Foundation challenges both the December 11, 2013 judgment and the January 2014 order in the review petitions to cure the gross miscarriage of justice.

It says, "The effect of re-criminalisation on account of the impugned judgment has caused immense prejudice to gay activists, who have been put at risk of prosecution under Section 377 IPC, on account of the association between homosexuality and penile-anal/penile-oral sexual acts."

Why should 377 be scrapped
The petitioner drew the court’s attention to the fact that under an amendment introduced in the IPC in 2013, Section 375 of the IPC in 2013 makes penile non-vaginal sexual acts, between man and woman, without consent an offence. By necessary implication, such sexual acts between man and woman, which are consensual, are no longer prohibited.

IPC Sec. 375 vs Sec. 377
The petitioner says,  "these consensual acts between man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant. Therefore Section 377 now effectively only criminalises all forms of penetrative oral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of Article 14."