New Delhi: The Supreme Court today agreed to reconsider its earlier decision criminalising homosexuality and referred the curative petition filed by activists in this regard to a Constitution bench of five judges.
Three senior most judges of the apex court including Chief Justice TS Thakur heard a curative petition in an open court against its December 2013 verdict restoring a colonial era ban on gay sex. According to the apex court, a bench of five judges will now decide whether or not the existing ban on gay sex needs a relook.
"There are important constitutional questions involved in the issue relating to decriminalizing consensual gay sex within the privacy of a house," the SC said.
The curative petition, the last legal resort available to the petitioners, was filed by gay rights activists and NGO Naz Foundation. The apex court had on December 11, 2013, upheld the validity of section 377 (unnatural sexual offences) of the IPC.
The development should come as a ray of hope for gay rights activists and others as it follows a January 2014 decision by the top court dismissing a bunch of review petitions challenging the order.
The petitioners, including the NGO, which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, contended that there was an error in the judgement delivered on December 11 last year as it was based on an old law.
"The judgement was reserved on March 27, 2012 but the verdict was delivered after around 21 months and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgement," the plea had said.
The gay rights activists had said thousands from the LGBT community became open about their sexual identity during the past four years after high court decriminalised gay sex and they were now facing the threat of being prosecuted.
They had submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community. The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment.
The apex court had said it did not see any reason to interfere with the December 11, 2013 verdict and had also rejected the plea for oral hearing on the review petitions
It revived the penal provision making gay sex an offence punishable with life imprisonment, in a setback to people fighting a battle for recognition of their sexual preferences.
While setting aside the July 2, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court was legally unsustainable.
(With PTI inputs)