CJI to decide fresh PIL by gays: SC

Legal Correspondent

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New Delhi, June 29

The Supreme Court today referred to Chief Justice of India TS Thakur a fresh PIL by choreographer Navtej Singh Johar and other noted members of the gay community seeking decriminalisation of homosexual acts. Under Section 377 of the Indian Penal Code (IPC), a homosexual activity and other forms of unnatural sex are a crime punishable with imprisonment for life or less.

A Bench comprising Justices SA Bobde and Ashok Bhushan refused to hear the PIL as similar pleas were already placed before a five-member Constitution Bench of the apex court. It said it would either keep the petition pending till a ruling by the five-judge Bench or refer it to the CJI.

Arguing for the petitioners, senior counsel Arvind Datar said this was the first time members of the gay community had approached the judiciary challenging the validity of Section 377. Earlier, judicial rulings were on petitions by NGOs and religious groups, he said.

As the Bench was reluctant to hear it, Datar accepted the option of referring the petition to the CJI for a decision as to whether it could be heard with similar cases. Among the other petitioners are chef Ritu Dalmia and hotelier Aman Nath.

On February 2, a three-member Bench headed by CJI Thakur accepted the plea for sending the issue to a larger Bench after senior advocate Kapil Sibal pleaded that the December 11, 2013, SC ruling re-criminalising gay sex ran counter to an apex court Constitution Bench judgment holding that right to sex was the “most private and most precious” part of life.

Sibal had contended that deciding the validity of Section 377 involved interpretation of various Constitutional provisions dealing with people’s fundamental rights and as such the issue should be gone into by a larger Bench.

On July 2, 2009, the Delhi HC had diluted Section 377, excluding homosexual acts of consenting adults in privacy from its purview. This was set aside by the SC by upholding the penal provision. Sibal also argued that the SC had stigmatised a section of population for generations to come on the basis of their sexual preference which amounted to denying them of their right to lead a life of dignity.