New Delhi, Feb. 2: Shobha Doshi has been glued to the TV all day. Later this night, the 65-year-old will make a phone call to her son in America to tell him that a small battle has been won in India.
The celebration may yet turn out to be premature but there's a reason why the elderly mom, way ahead in outlook than many others her age, is upbeat.
Doshi, one of the signatories to the original petition to decriminalise homosexuality, was among 19 parents - from an estimated six million households across India with gay men - who had joined the NGO Naz Foundation in moving court in 2001 to legalise gay sex.
Today, in a shot in the arm for India's LGBT (lesbian, gay, bisexual and transgender) community, the Supreme Court opened the doors for a fresh discussion as it referred the matter to a five-judge Constitution bench.
"I can't say how happy I am. I can't wait to call my son," she told The Telegraph from Mumbai. "There is definitely a problem in the law and that needs to change."
Under Section 377 of the Indian Penal Code, homosexual sex is now a criminal offence punishable by a jail term.
"The court has never said the section can't be repealed. But it's nice to have validation in the court because we have all seen how MP Shashi Tharoor was shouted down when he tried to introduce a private member's bill on the subject," said Anis Ray, a rights activist based in Calcutta.
"Some MPs are not mature enough to even discuss the issue, let alone legislate on it. So our hopes rest on the judges."
It has been a long battle for the community since 2001 when the Naz Foundation filed a petition in Delhi High Court challenging Section 377 on the grounds that the colonial-era law violated the right to privacy, dignity and health.
In July 2009, the high court struck down the provision on the ground that it violated an individual's privacy and right to equal treatment before law under Articles 14, 15 and 21 of the Constitution.
But four-and-a-half years later, in December 2013, the Supreme Court quashed the high court judgment, said it was not "for courts to create the law", but lobbed the ball in the Centre's court.
The government, however, didn't take any step. The matter cropped up in Parliament only once when Congress MP Tharoor tried to move a bill as a private member in the Lok Sabha last year. "But he was bullied in the House and people even questioned his sexuality. The minute someone talks about gay rights, they are ridiculed for being gay," said equal rights activist Harish Iyer.
Iyer felt that the time has also come for the battle to be "fought at dining tables" at every household. "Now is the time for India to prove that we are a tolerant nation," he said.
Today's order came days after a bench said it would on February 2 conduct an open hearing of a "curative petition" - the last resort for a litigant - that sought a re-look at the 2013 judgment.
"The order is a validation of the fact that the question of Section 377 is not a trivial matter. It is a question of dignity and respect," Gautam Bhan, a petitioner and LGBT activist in Delhi, said this evening.
Anand Grover, a senior lawyer who represented the petitioners in the case, said the matter has been referred to the five-judge bench as "questions of constitutionality and basic human rights" are involved. "Our grounds are primarily that none of the issues that we raised on fundamental rights were addressed."
But it was Ray who hit the nail on the head. "What I would like to know now is the stand of this government. We know what the Church thinks, what the Muslim law board thinks. But we are in the dark about the government's stand," the Calcutta-based activist said.
"It has been talking in two voices - (home minister) Rajnath Singh has been for criminalisation while (finance minister) Arun Jaitley has publicly batted for decriminalising (gay sex). Now the time has come for the government to take a call."
