Supreme Court to hear gay sex curative plea February 2

The Supreme Court will hear in open court on February 2 the curative petition filed by gay activists and Naz Foundation seeking to cure the defects in the judgment upholding the validity of IPC Section 377 insofar as it re-criminalises homosexuality between two consenting adults on the ground that there was no constitutional infirmity in this provision.

A bench headed by Chief Justice T.S. Thakur will hear the curative petition which is normally heard in the chambers of the senior judge. This gives fresh hope to gay activists fighting for rights. The apex court had upheld the colonial-era Section 377 of the Indian Penal Code, which penalises same-sex intercourse with up to 10 years’ imprisonment.

After the verdict, the LGBT (lesbian, gay, bisexual, and transgender) community has received support from several quarters. Political parties, including the Congress and Communist Party of India (Marxist), included the matter of their rights in their national manifestos.

The curative petition challenges both the December 11, 2013 judgment and the January 2014 order in the review petitions to cure the gross miscarriage of justice. It said, “The effect of re-criminalisation on account of the impugned judgment has caused immense prejudice to gay activists, who have been put at risk of prosecution under Section 377 IPC, on account of the association between homosexuality and penile-anal/penile-oral sexual acts.”

The petitioner drew the court’s attention to the fact that under an amendment introduced in the IPC in 2013, Section 375 of the IPC in 2013 makes penile non-vaginal sexual acts, between man and woman, without consent an offence. By necessary implication, such sexual acts between man and woman, which are consensual, are no longer prohibited.

Consequently, the petitioner said, “these consensual acts between man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant. Therefore Section 377 now effectively only criminalises all forms of penetrative oral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of Article 14.”

Further it said, “This court has incorrectly held that a minuscule fraction of population cannot claim fundamental rights, thereby rendering Part III of the Constitution meaningless for all individuals and minority communities in India. This finding has caused immense public injury and, if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens. The judgment reflects an issue of bias against the lesbian, gay, bisexual and transgender persons.”