BENCH ON SEC 377 VALIDITY RECONSTITUTED

Days ahead of the crucial hearing on a clutch of petitions challenging the validity of section 377 of the IPC that criminalises consensual gay sex, the Chief justice of India Dipak Misra has reconstituted the 5 judge constitution bench to hear the case.

According to the cause list released by the supreme court registry, the hearing in the matter will commence from July 10, and the new bench will comprise – Chief Justice of India, Dipak Misra, Justice RF Nariman , Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra.

The new members on the bench are Justice Nariman and Justice Indu Malhotra, who was recently elevated to the Supreme Court, replacing Justice AK Sikri and Justice Ashok Bhushan.

This change comes almost 6 months after the chief justice of India set up a bench of 5 judges comprising himself, Justice AK Sikri, Justice Ashok Bhushan, Justice AM Khanwilkar and Justice DY Chandrachud to hear among other constitutional matters, the controversial section 377 case.

In January, the chief justice of India had set up this bench to hear cases like Aadhaar, the validity of Section 377 of Indian Penal Code, validity of adultery law under the IPC, entry of women into Kerala’s Sabarimala temple and others.

These petitions filed by Bharatnatyam dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and mediaperson Sunil Mehra challenge a 2013 judgment of the top court that criminalised consensual sex between adults.

The petitioners, who are also members of LGBT community, argue that section 377 has the potential to destroy an individual’s choice and sexual orientation and is not a reasonable restriction under law.

The court had last year admitted these petitions and referred it to a constitutional bench.

Legal experts believe that there is nothing unusual in the development. “It is always normal thing. The CJI is the Master of the Roster and it is his prerogative to decide on the bench. It is an absolutely correct thing to do and there is nothing unusual in this. Also as you know that the judgment on Master of Roster has come, so it is completely normal” said former solicitor general of India Ranjit Kumar.

Supreme court advocate Aishwariya Bhati said, “Constitution benches keep changing on the availability of judges, their benches and matters.”