iconimg Thursday, September 03, 2015

HT Correspondent, Hindustan Times
New Delhi, January 28, 2014
In yet another setback to the LGBT community, the Supreme Court on Tuesday declined to re-look at its verdict, reviving the colonial era provision that declares consensual homosexual acts in private a criminal offence. A bench of justice HL Dattu and justice Sudhansu Jyoti Mukhopadhyay dismissed the review petition in a chamber hearing on Tuesday afternoon. Under the SC rules, advocates cannot argue review petitions unless ordered by the court.

Rejecting the petitioners’ plea to hold a hearing of the matter again, the bench said: “We have gone through the review petitions and the connected papers. We see no reason to interfere with the order impugned. The review petitions are, accordingly, dismissed.”

Apart from the government and the NGO, the review petitions were moved by filmmaker Shyam Benegal, feminist activist and writer Nivedita Menon, Ratna Kapur, Minna Saran, Shekhar Seshadri, Voices Against Section 377 and others. With the dismissal of review petitions, the petitioners are left with only the option to file a curative petition.

Timeline: Legality of homosexuality in India

Section 377: a push back into the closet?

“I am shocked. The battle is lost but the war will go on,” said senior advocate Anand Grover, who represented Naz Foundation, a gay rights advocacy group. Grover said they would definitely file a curative petition.

The apex court had on December 11 last set aside a Delhi high court verdict that decriminalised gay sex. It revived Section 377 of the Indian Penal Code (IPC) that makes gay sex a punishable offence with life imprisonment. A bench of justice GS Singhvi (since retired) and justice Mukhopadhyay had left it to the Parliament to amend the law.

The Delhi high court by its July 2, 2009, verdict held that "Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution," but said the provision "will continue to govern 'non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors' ".

But the apex court by its December 11, 2013, order said: "We hold that Section 377 does not suffer from vice of unconstitutionality and declaration made by the division bench of the Delhi high court is unsustainable."

Amid public outcry against the judge, the Centre had moved the SC with a plea to review its verdict. It said grave miscarriage of justice was caused to thousands of people of the lesbians, gays, bisexuals and transgenders (LGBT) community. The Centre said the judgment was unsustainable and suffered from errors.

Various gay rights activists said that subsequent to the HC’s 2009 judgment, several persons from the LGBT community had become open about their sexual identity. Now, the same persons were facing the threat of being prosecuted, they said.

What next?
*Aggrieved parties can file a curative petition against the dismissal of their petitions, seeking to recall the December verdict.
*The government can bring in an ordinance de-criminalising consensual homosexual acts in private.
*The government can introduce a bill to amend Section 377 of the IPC to de-criminalise homosexual acts in private.

 Read: Supreme Court says gay sex illegal, govt hints at legislative route