It almost feels unreal, but there is a real chance for change here. On Thursday, the Supreme Court agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against section 377, a colonial era provision criminalizing consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, on September 8.
A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said that it will go through the documents and consider their plea.
Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case.
The nine-judge Bench, on August 28, observed that the chilling effect of Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”
Justice D.Y. Chandrachud,in his judgment observed that is was not a sustainable basis to deny the right to privacy due according to the 2014 judgement that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”
The curative petitions were the last stand for the over a decade-old legal fight for LGBT rights.
The Review Bench of the Supreme Court, in January 2014, had agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally accepted verdict of the Delhi High Court. The High Court had declared Section 377 unconstitutional, and said it was in violation of the fundamental rights enshrined in Articles 14, 15 and 21 of the Constitution.
Sexuality is a broad spectrum and an individual can belong anywhere on it, restricting them to one section due to the hetero-normative structure of society is just plain unfair. People must have the fundamental right to live their lives as they sit fit and must be given their right to privacy. Hopefully, by the repealing of section 377 of the Indian Penal code will lead the members of the LGBTQIA to live in align with their sexual orientation and will give room for awareness and education.