SC may decide on hearing gay sex plea in open court

  • Satya Prakash, Hindustan Times, New Delhi
  • Updated: Apr 21, 2014 19:32 IST

The Supreme Court is likely to decide on Tuesday whether to hear in open court a curative petition requesting it to "correct" its verdict reviving a colonial era provision that makes consensual homosexual acts in private a criminal offence punishable with life imprisonment.

A curative petition is generally not heard in open court. It is the last option available to a litigant after exhausting all the appeals and the dismissal of a review petition.

Senior counsel Anand Grover requested a bench headed by Chief Justice of India, P Sathasivam, that while deciding Naz Foundation's curative petition, the SC should take into account its latest verdict that gave legal recognition to the transgender community.

Maintaining that the SC verdict required "immediate reconsideration", Naz Foundation - an NGO fighting for gay rights - has contended in its curative petition that the SC judgment contained many "patent errors on the face of the record", including non-consideration of its main contentions regarding violation of fundamental rights and mistake of law.

The SC had on December 11 reversed a landmark 2009 Delhi high court verdict decriminalising gay sex. It had revived Section 377 of the Indian Penal Code (IPC) that makes gay sex an offence punishable with life imprisonment. On January 28, it declined to review its verdict that made consensual gay sex in private illegal.

A bench of justice HL Dattu and justice SJ Mukopadhaya had dismissed eight review petitions filed by gay rights organisations and activists and the Union of India during in-chamber proceedings. Under SC rules, advocates cannot argue review petitions unless ordered by the court.

Amid widespread public outrage, the Centre had moved the SC with a plea to review its verdict, calling it a grave miscarriage of justice to thousands of LGBT persons. The review petitions filed before the SC argued that its verdict amounted to a violation of the fundamental rights of the LGBT community and also hampered HIV/AIDS prevention efforts.

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