The Supreme Court has referred the section 377 curative petition - challenging the Supreme Court’s upholding in 2013 of the colonial-era law that outlaws homosexual and other “unnatural” intercourse - to a five-judge Constitution Bench for further examination.

Senior counsel Kapil Sibal argued for two minutes for the petitioner the Naz Foundation, saying that the issue involved dignity and the right to sexuality - both of which are Article 19(1)(a) rights.

Sibal said that the right to sexuality is the most precious right and curtailing that right to express sexuality in the private sphere was unconstitional. This judgment will bind the present and future generations, he said, it involves issues of dignity and stigma. 

He referred to the Nalsa judgment and its inconsistency.

The Lawyers Collective senior counsel Anand Grover was also in court for Naz.

Chief Justice of India (CJI) TS Thakur wondered whether there was any opposition to the curative petition.

Then the counsel for the All India Churches Association made a brief submission about why the Kaushal judgment should not be reconsidered.

A counsel representing the Muslim Personal Law Board also made brief submissions.

Another counsel claiming to represent Kaushal and others made  brief submissions.

The judges just listened; only Justice Thakur intervened.

The he began to dictate the order after a five-minute hearing.

The Hindu reported that:

Giving an indication that the Supreme Court will consider the constitutionality of Section 377 with new eyes, Chief Justice Thakur told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new Bench would not limit itself to the narrow confines of the curative law and conduct a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.

One of the LGBT activists present in court said it was a big relief to them. When someone else kept talking the activist requested silence because it was ‘their’ order and it was in their favour.

Also read: A run-through the 377 history, and Kian’s now vindicated (but then optimistic) expression of hope in Chief Thakur this morning.

True, much can still go wrong between re-striking it down and leaving it on the books.

Any one of the five judges who’ll be examining it may not have much love lost or understanding for the LGBT cause, but it is hard to imagine a section as archaic surviving a thorough roasting over numerous basic human rights.

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