LGBTQ activists want SC to constitute Constitution Bench soon

The Supreme Court, on Monday, had agreed to review its own decision of criminalising consensual sexual relationship between adults of same gender under Section 377. While referring it to the Constitution Bench, the Chief Justice of India, Dipak Mishra, had stated that sexual minorities had the right to lead a life free of threats and a life of dignity. The court had ruled based on the writ petition filed by Navtej Singh Johar, Sunil Mehra, Ritu Dalmia and Aman Nath.

While this decision has certainly brought cheer to the LGBTQ (Lesbian, gay, Bisexual, Transgender and Queer) community, there are many who wonder what will eventually happen. “This ruling from the Supreme Court sounded like what happened in 2016 when the PIL filed by Naz Foundation was referred to a Constitution Bench. But, that Bench has not been constituted yet. Any baby step is, of course, a good step, but now confusion reigns whether both will be sent to the same bench or if there will be separate benches. Nothing is clear. We hope that the Constitution Bench is constituted soon,” pointed out Rituparna Borah, a queer feminist activist and member of Nazariya, a queer feminist resource group.

“It is a welcome move from the Supreme Court,” said transgender activist Shaman Gupta, “however, the sad part is that Parliament which is, in the most democratic sense, the representation of our society and its views, has failed to take any call on repealing or amending the law. Till when will we keep knocking our Supreme Court's door for rights and laws which are so basic to human existence, dignity and privacy. We need our politicians to step up now and take the responsibility of making better laws in this country rather than fighting over religion and caste. Supreme Court revisiting its own decision after leaving it for the parliament to decide is itself in a way is a silent slap on the face of our legislators and law makers.”

“The supreme court NALSA judgement of 2014 that gave transgender persons their basic rights, is yet to be implemented as a law by our parliament. It has been four years and the Bill even after various versions is still pending for discussion in Parliament. The discussions around LGBT rights have been going around since decades now, and it is about time these laws are passed so that everyone could live with dignity irrespective of their gender and sexual identities. That would, in the truest sense, be a win for us as a democratic country,” elaborated Gupta, who is also a board member of the Tweet Foundation (Trans Welfare Equity and Empowerment Trust).

“It is a huge sigh of relief that the case is going forward. With the NALSA and privacy judgement, it was only a matter of time. However, confusion reigns about the bench,” stressed Ashok Row Kavi, founder of Humsafar Trust. 

In 2009, the Delhi High Court had stated that Section 377 was a violation of the fundamental rights as guaranteed by the Constitution, but in 2013, the Supreme Court two-judge bench re-criminalised homosexuality, cancelling the Delhi high court order.