#Section377: SC may have done the right thing but let's not get our hopes too high

QUICK PILL

The decision

• Supreme Court has referred petitions challenging Section 377 to a constitution bench

• But this might not necessarily lead to decriminalisation of homosexuality
• A lot depends on how broad the scope of the referenc is

More in the story

• What are the various possibilities?

• What can one expect from the constitution bench?

There is still hope that homosexuality will be decriminalised in India. But we need to be guarded in our optimism.

The Supreme Court on Tuesday referred the petitions challenging Section 377 of the Indian Penal Code to a 5 member Constitution Bench.

The Order of Reference is yet to be made available on the court's website, so at the time of writing, it is not clear exactly what issue(s) have been referred to the constitution bench.

2 possibilities

One the Constitution bench might decide whether the extremely narrow grounds on which the Supreme Court can entertain a curative petition need to be expanded. If this turns out to be the case, then there will be very limited scope for change. It would not affect Section 377 in any way whatsoever. Then, all the hopes being pinned, the plaudits being heaped on the Supreme Court, would turn out to be misplaced.

Also read: If you care about gay rights, you must read Justice AP Shah's lowdown on Sec 377

It is the second possibility that provides scope for optimism. The court might go into the merits of its 2013 judgment, and possibly hold that it was wrong. Moreover, since it is not known when the Constitution bench would be set up and start hearing the case, more people - for instance, someone who had been prosecuted under Section 377 - could join in as parties.

We don't know when who would be there in the constitution bench and when it would meet

However based on the bench's tenor on Tuesday - Chief Justice TS Thakur said that the curative petition involves issues of constitutional importance - one can hazard a guess that the Constitution bench may address the decriminalisation issue.

Homosexuality's day in court

Senior Advocate Kapil Sibal led arguments for the petitioners. Besides Naz Foundation, 7 others had also moved court against the 2013 judgment and all the 8 petitions had been tagged together.

Making the dignity of LGBTQ community the fulcrum of his arguments, Sibal contended that the 2013 ruling, if not overruled, would shackle both present and future generations of homosexuals to a life of social opprobrium and fear of police harassment and criminal prosecution. That, according to Sibal, would cause a grievous injury to society.

Senior Advocate Anand Grover, representing Lawyers Collective, one of the petitioners, based his arguments on the right to privacy and contended that Section 377 makes a grave incursion into a very fundamental human right.

Also read: SC keeps the battle against Section 377 alive. Here's a look back at the controversial law

Some religious bodies, cutting across faiths, opposed the petitioners and argued that homosexuality is immoral, a medical deformity, a perversion and unless criminalised, would wreak havoc on society.

Back in 2013, Suresh Kumar Koushal, a Delhi-based astrologer who challenged the Delhi High Court's 2009 judgment outlawing Section 377, had expressed similar views as these self-appointed guardians of faith stated in court today.

Religious bodies cutting across faiths support Section 377 saying homosexuality is immoral

Why a Constitution Bench reference is good news

In 2013, some legal scholars had criticised the apex court's verdict. According to them, the decriminalisation of homosexuality was too important an issue to be decided by a bench of only 2 judges - the 2013 ruling was given by a bench of Justices GS Singhvi and Sudhansu Jyoti Mukhopadhaya .

For instance, Nick Robinson of Harvard Law School wrote an Oped strongly rooting for a Constitution Bench.

Such a bench, as provided for by Article 145(3) of the constitution, comprises 5 or more judges and is mandatory in cases involving "a substantial question of law as to the interpretation of this Constitution".

What lies ahead

For quite some time, there was a glaring paucity of constitution benches in the Supreme Court. This trend had many jurists and lawyers worried. They felt that it would end up hampering the quality of justice, especially in important cases.

However, CJI Thakur has recently put in a remedy, by setting up 3 constitution benches which have started hearing cases from January this year. These benches operate on every Monday and Friday.

It is not known when the constitution bench will start hearing what the Supreme Court referred to it in this case.

The composition of the bench is also yet to be decided. With some sitting judges being quite vocal about their "conservative" values, there are fears that the SC won't strike down Section 377.

So, all-in-all it is a bit premature to hail today's Supreme Court ruling as "progressive", or hope too much about the final outcome of the case.

Also read: Life and times of a 16th century Muslim saint who fell in love with a Hindu boy