Reporter’s Diary: Why two former SC judges deserve credit for the Section 377 verdict

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into the interactions between judges and lawyers appearing in cases and offers a take on recent developments in the courts.

While the Constitution Bench that delivered the landmark judgment in the petitions challenging Section 377 of the Indian Penal Code may justifiably take the credit for reforming the law finally, the petitioners cannot but look back on the first success they achieved in the Supreme Court, from a two-Judge Bench of Justices YK Sabharwal and PP Naolekar.

History must thank these two judges for correcting the Delhi High Court, which had initially dismissed the petition filed by Naz Foundation on the grounds that there was no cause of action in the petition, and that there was no prosecution pending against the petitioner.

The High Court Bench of then Chief Justice BC Patel and Justice Badar Durrez Ahmed held in 2004 that an academic challenge to the constitutionality of a legislative provision could not be entertained. The High Court had dismissed Naz’s review petition as well.

The review petition before the High Court had claimed that the homosexual community in India, on account of Section 377, is a socially disadvantaged group which is unable to approach the Court directly for fear of being identified and subject to harassment by the police.

It was to the credit of Justices Sabharwal and Naolekar – who heard Naz’s Special Leave Petition against the Delhi High Court’s dismissal of its petition – to observe that the High Court could not refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.

The Supreme Court thus dismissed the High Court’s reasoning and reinstated the case at the High Court. The rest is history.

Had this Bench not reinstated the case at the Delhi High Court, the struggle of the LGBTQ community might have taken a different course altogether.