New Delhi (Pahichan) June 30 – Chief Justice of India (CJI) T S Thakur will now decide whether the plea filed by gay celebrities challenging the law criminalising gay sex will be heard by the Constitution Bench – which is seized of the matter – with the main issue whether to scrap the penal provision 377 of IPC.

The Apex Court asked the five celebrity petitioners to go before CJI for appropriate order so that their plea will also be heard along with the main homosexuality issue.

“We are not inclined to hear the petition at this stage. We will keep this till the Constitution Bench decided the curative petition. If you want you can go before CJI for appropriate order,” a bench headed by Justice SA Bobde said.

Appearing for the celebrities, senior counsel Arvind Dattar told the court that the petitioners are the real aggrieved persons and earlier an NGO had filed the plea in the apex court which is pending. Several well-known lesbian, gay and bisexual Indians argued that Section 377 of India’s penal code, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, undermined their fundamental rights by failing to protect their sexual choice.

Chief Justice T S Thakur is yet to set up the Constitution bench.

The celebrities, including chef Ritu Dalmia, hotelier Aman Nath and dancer N S Johar, in their plea had sought protection of their sexual rights on the ground that it is an integral part of the fundamental right to life.

The gay celebrities said their lives have been “inexorably constricted and their rights infringed” by the penal provision.

In February, Chief Justice bench had agreed to hear in an open court the curative plea of NGO ‘Naz Foundation’ and some gay rights activists but had referred the curative plea to a five-judge Constitution Bench for re-examination of the 2-year old verdict.

While setting aside the July 2, 2009 verdict of Delhi High Court, the apex court had held that Section 377 of IPC does not suffer from the vice of unconstitutionality and that the declaration made by high court was legally unsustainable.

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