Indian gay rights activist Amalina Dave smiles outside India's Supreme Court in New Delhi on February 2, 2016. India's top court agreed February 2 to review a law outlawing gay sex, sparking hope among campaigners that the legislation dating back to the 19th century will eventually be overturned in the world's biggest democracy.  AFP PHOTO / SAJJAD HUSSAIN
Indian gay rights activist Amalina Dave smiles outside India's Supreme Court in New Delhi on February 2, 2016. India's top court agreed February 2 to review a law outlawing gay sex, sparking hope among campaigners that the legislation dating back to the 19th century will eventually be overturned in the world's biggest democracy. AFP PHOTO / SAJJAD HUSSAIN

Five-judge Constitution Bench will take a call.

New Delhi : A five-judge Constitution Bench will decide whether a colonial-era ban on gay sex in India should stay or go.

So, on Tuesday, even though there was no immediate relief for those seeking to decriminalize homosexuality, the fact that the five-judge bench will now decide on the curative petition was greeted with jubilation. Gay activists said they are happy that the curative petition has not been dismissed and there is a hope of positive outcome in their 15-year-old legal battle.

The 3-judge Bench before which the curative petition had come up on Tuesday did not issue notice to the Centre or any of the parties opposing decriminalization of section 377; the larger bench, the court said, would be constituted sometime in the future.

Earlier, in the court, senior advocate Kapil Sibal argued that he was before the court to plead for the people’s most private and most precious right. It is the sexual right. No one should object if it is exercised with consensus and within four walls, he submitted.

Faulting the Apex Court for upholding the validity of section 377 IPC, Sibal said it has trampled upon the rights of the gay people who are facing indignity and stigma.

 When another senior advocate Anand Grover, appearing for one of the eight petitioners seeking a relook at the Apex Court verdict, sought to address the court, Chief Justice Thakur asked: “Does anyone actually oppose it,”  drawing laughter in the courtroom. He also observed that such an important issue needed to go to a Constitution Bench of five judges.

The curative petition filed by NGO Naaz Foundation, seeking justice for lesbian, gay, bisexual, and transgender persons, is pending since April 2014. The petition is being opposed by the Muslim Personal Law Board and the Church of India.

A curative petition is the last legal resort and is usually heard by judges in chambers, but Tuesday’s hearing took place in open court. The Supreme Court had rejected a review petition in 2014.

Under challenge this time is the Apex Court’s ruling that there is no constitutional infirmity in the penal provision under IPC that criminalises homosexuality. (Section 377 of the IPC makes gay sex a crime and for which the punishment can be a life term).

In 2009, the Delhi High Court had exempted gay sex between consenting adults from Section 377, the 1860 law which bans “carnal intercourse against the order of nature with any man, woman or animal.” The Supreme Court reversed the landmark ruling in 2013, ending four years of decriminalisation that had helped bring homosexuality into the open in largely conservative India. The court had said only Parliament can remove or change laws.

The Congress appealed against the Supreme Court decision and had pledged to remove the law if it came to power, but it lost in 2014. Finance Minister Arun Jaitley has backed calls for ending the ban, though his BJP has been more cautious. “When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed,” Jaitley said at an event last year. (Input NDTV)courageous conservative. Iowa has send notice that the next Republican nominee or the president would not be chosen by the media, would not be chosen by the lobbyist or by the Washingtonians…he would be chosen by the American people.”

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