Chief Justice of India Dipak Misra has changed the composition of the five-judge constitution bench that will examine the legal validity of section 377 of the penal code, a Victorian-era law that effectively criminalizes non-heterosexual relationships, among other types of ‘carnal intercourse against nature’. The question before the court is, whether Article 377 of the Indian Penal Code which in effect regulates the consensual sexual behaviour of adults even in the privacy of their bedrooms, is violative of the freedoms guaranteed by the Indian Constitution.
For those who snigger that it is just a ‘gay issue’, a reading of the section will tell you that except for the traditional ‘missionary position’, the entire Kamasutra (that oh-so-famous traditional Indian treatise attributed to sage Vatsayan) is illegal according to this old British law that even Britain threw out with the bathwater over 50 years ago!
Interesting to note that a handful of fundamentalist religious leaders (Hindu, Muslim, and Christian) who will otherwise find silly reasons to disagree and fight with each other, are unitedly in favour of this demeaning and archaic law. The great majority of liberal and educated people, irrespective of religion, class, or gender support the repealing of section 377. Now that POCSO has been implemented, the other sections of 377 dealing with pedophilia and child rape have become redundant.
The hearing begins on Monday, July 9. Justice Misra, who heads the bench, has replaced Justices A.K. Sikri and Ashok Bhushan with Justices R.F. Nariman and Indu Malhotra. The other two judges on the bench are Justices A.M. Khanwilkar and D.Y. Chandrachud.
No official reason has been given for the change. It’s the Chief Justice’s prerogative to constitute or reconstitute any bench as he is the “master of the roster” – a point reaffirmed on Friday by the apex court.
Jurist Shanti Bhushan had moved a petition suggesting the five-judge collegium should collectively allocate cases, citing how four collegium members had last January publicly accused Justice Misra of arbitrary allocation of cases.
It is understood that Justice Misra had decided to have two new judges on the bench after consulting several other judges, including Justices Sikri and Bhushan. The possibility of Justices Sikri and Bhushan having recused themselves from the case is not ruled out.
Delhi High Court had in 2009 had read down 377, and de-criminalised all private, consensual sex between adults, declaring Section 377 of the Indian Penal Code, which criminalises homosexual acts among others, as unconstitutional.
But a two-judge apex court bench ruled in 2013 that Section 377 was constitutionally valid. The judgment was upheld against a review petition, while a curative petition by NGO Naz Foundation is pending.
Human rights activists, parents of gay and lesbian oriented persons, and even several lawmakers came out in support of LGBT rights. Thus mounted a fresh challenge to the section on the ground that it violated the fundamental rights of LGBT citizens. Several countries, including South Africa, have amended their archaic laws, giving LGBT people not only the right to consensual sex, but also the right to legal marriage.
On January 8, the apex court referred the matter to a five-judge constitution bench, clarifying that only consensual adult sex was being considered for possible decriminalisation, and not sex with children or animals.