In a significant move, Supreme Court of India has referred the batch of curative petitions seeking ‘curing of the defects in the 2013 judgment on section 377 of Indian Penal Code’ to a five-judge constitution bench. The December 11, 2013 judgment of the Court had upheld the validity of section 377 of IPC which criminalises homosexual intercourse.
A bench comprising of Chief Justice of India TS Thakur, and Justices Anil R Dave and JS Khehar passed the above order in a batch of curative petitions filed before the Court which seek to cure the defects in the 2013 judgment. Subsequent to the 2013 judgment passed by the bench of Justices GS Singhvi and SJ Mukhopadhaya, review petitions filed to review the judgment were also dismissed by the same bench.
Thereafter curative petitions were filed as a last resort to undo the judgment which had overturned the 2009 judgment of Delhi High Court which had declared that section 377 of IPC, insofar it criminalises consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of the Constitution of India.
Curative Petitions to cure the defects in the 2013 judgment
The curative petitions, as per Order XLVIII of the Supreme Court of India Rules, 2013 are heard by a bench comprising of the three senior most judges of the Supreme Court and judges of the bench which had originally passed the judgment complained of, if they are available. The curative petitions which were filed in 2014 were listed before the bench comprising of then Chief Justice of India P Sathasivam, Justices RM Lodha and HL Dattu (as they were then), and Justice SJ Mukhopadhaya.
Justice GS Singvhi, author of the 2013 judgment was not a part of the bench as he had retired on the day the judgment was pronounced in 2013.
On April 22, 2014, the aforesaid bench of four judges heard the curative petitions ‘in chamber’ and ordered to list the matter in court. This meant that the matter would then be heard in an open court.
The matter was heard by the bench of three senior most judge of the Supreme Court – Chief Justice of India TS Thakur, and Justices Anil R Dave and JS Khehar . Petitions were listed for hearing at 3 pm and by then the courtroom was packed with lawyers, litigants and those interested in the matter. The judges entered the courtroom at 3.14 pm.
Sitting in the first row across the two sides were senior counsels Kapil Sibal, Shyam Diwan, Anand Grover and Ashok Desai, who were representing the curative petitioners. Mr. Sibal was the first to speak who submitted that one of the most basic and fundamental rights was the right to sexuality. He further submitted that the matter involved one of the most private rights – sexuality. He asserted that one of the contentions in the matter involved the fundamental rights under article 19(1)(a) of the Constitution of India – which was not examined by the court in the 2013 judgment.
Sibal cited the the judgment of Supreme Court in National Legal Services Authority v. Union of India and submitted that the same had recognised the expression of sexuality.
On being asked if anyone was opposing the curative petitions, counsels for a body of churches and All India Muslim Personal Law Board acknowledged their opposition.
Sibal submitted that the matter should be referred to a constitution bench under article 145(3) of the Constitution. CJI Thakur then consulted Justices Dave and Khehar and the bench proceeded to refer the matter to a constitution bench. Bench said that it was not issuing a notice in the matter.
Order of the court was not available and would be added to this post as and when available.
We also tried to provide a live update of the hearing via Twitter:
Disclosure: Author is representing petitioners in one of the above curative petitions.
Image from here.