Activists happy with SC review on gay sex

New Delhi: LGBT activists were happy with the court verdict. “I am happy the court has referred the matter to a five-judge bench. The court is going to look at constitutional arguments to decriminalise homosexuality, and hopes have been raised that if the petition has been accepted, that means they see some merit in it. Let’s hope this is the last leg of the fight,” said LBGT activist and Naz Foundation director Anjali Gopalan.

Welcoming the order, transgender rights activist Laxmi Narayan Tripathi said: “Actually the court could have struck it down and asked the government to react on it to assert that democracy prevails in the country and the right of expression, right to life and dignity is still there. But it is interesting how the matter has been referred to a five-judge bench.”

In court, meanwhile, Mr Kapil Sibal submitted that the most private of rights was involved, that is sexuality. He said breach of expression of sexuality within a private sphere was unconstitutional.

In view of the earlier ruling, he said gay activists are stigmatised and face indignity and their rights under the Constitution are violated.

It was brought to the notice of the court that the Apostolic Churches Alliance and the Muslim Personal Law Board opposed any re-examination of the verdict and wanted dismissal of the curative petitions.

The curative petition challenged both the December 11, 2013 judgment and the January 2014 order in the review petitions to remedy the gross miscarriage of justice.

It said: “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.”

The petitioners drew the court’s attention to the fact that under an amendment introduced in the IPC in 2013, Section 375 IPC in 2013 makes penile non-vaginal sexual acts between a man and woman without consent an offence.

By implication, such sexual acts between a man and woman that are consensual are no longer prohibited.

Consequently, the petitioner said: “These consensual acts between a 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 is thus violative of Article 14.”

It further said: “This court has incorrectly held that a minuscule fraction of the population cannot claim fundamental rights, thereby rendering Part III of the Constitution meaningless for all individuals and minority communities in India. This finding has caused immense public injury, and if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens. The judgment reflects an issue of bias against Lesbian Gay Bisexual and Transgender (LGBT) persons.”

Former Union home minister P Chidambaram, who has been strongly in favour of the Supreme Court reviewing the 2013 judgment, on Tuesday welcomed the decision to refer the matter to a five-judge Constitution Bench, and hoped the Delhi high court ruling on it will be upheld.

“I am happy that an error is being corrected. This is only the first step. I look forward to the day when the court will uphold the judgment of the Delhi high court,” he said.