Decriminalisation of homosexuality: SC to consider curative petition in open court

The petitioners contended that there was an error in the judgment delivered on December 11 last year as it was based on old law

The Supreme Court on Thursday agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality.

A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said it will go through the documents and consider their plea.

Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case.

The petitioners, including NGO Naz Foundation which has been spearheading the legal battle on behalf of the lesbian, gay, bisexual, and transgender (LGBT) community, contended that there was an error in the judgment delivered on December 11 last year as it was based on old law.

“The judgment was reserved on March 27, 2012, but the verdict was delivered after 21 months and during this period lots of changes took place, including amendment in laws which were not considered by the bench which delivered the judgment,” senior advocate Ashok Desai told the bench.

Other senior advocates Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers also supported Desai and pleaded for an open court hearing.

They submitted that the case should have been heard by the Constitution bench instead of two-judge bench which heard and delivered the verdict on the controversial issue.

The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists, including, noted film-maker Shyam Benegal against its December 2013 verdict declaring gay sex an offence punishable up to life imprisonment.

The court had said it did not see any reason to interfere with the verdict and had also rejected the plea for oral hearing on the review petitions which are normally decided by judges in chamber without giving an opportunity to parties to present their views.

The Supreme Court had on December 11 set aside the Delhi High Court judgment decriminalising gay sex and had thrown the ball in Parliament’s court for amending the law.

The judgment revived the penal provision making gay sex an offence punishable with life imprisonment in a setback to people fighting a battle for recognition of their sexual preferences.

While setting aside the July 2, 2009, judgment of the Delhi High Court, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court is legally unsustainable.

Amid huge outrage against the judgment, the Centre had also filed a review petition in the apex court seeking a relook to “avoid grave miscarriage of justice to thousands of LGBT” persons who have been aggrieved by the apex court judgment contending it is “unsustainable” as it “suffers from errors”.

The gay rights activists and organisations had said thousands from the LGBT community became open about their sexual identity during the past four years after the high court decriminalised gay sex and they are now facing the threat of being prosecuted. They had submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community.