New Delhi, April 22 :
The Supreme Court Tuesday said that it would hear in open court the curative petition by NGO Naz Foundation seeking relook at its verdict upholding the validity of a provision of the Indian Penal Code criminalising gay sex.
A bench of Chief Justice P.Sathasivam, Justice R.M.Lodha, Justice H.L.Dattu and Justice S.J.Mukhopadhaya directed the listing of the matter in open court next week after they considered the curative plea by Naz Foundation in their chambers.
Naz Foundation had moved the Supreme Court earlier this month, seeking to cure “gross miscarriage of justice” in its judgment upholding the validity of Section 377 of the Indian Penal Code that criminalises gay sex.
In its curative petition, the NGO contended that 2013 amendment to section 375 of the IPC, dealing with cases of rape, said that consensual sex between an adult male and woman was not an offence and that by implication, such sexual acts between man and woman, which are consensual, are no longer prohibited.
Consequently, 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, it contended.
The petition said that section 377 now effectively only criminalises all forms of penetrative man, including, penile-anal sex and penile-oralAsex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of article 14 of the Constitution.
It said that the amendments to section 375 were carried out after the judgment in the gay sex case was reserved and the parties did not have a chance to address the court on the issue. It said that the court ought to have heard the parties on the effect of the amendments on section 377.
The curative petition said that the court had erred in upholding the classification between carnal intercourse in the ordinary course of nature and carnal intercourse against the order of nature under section 377, without recording a finding on the carnal intercourse against the order of nature. And whether there is a rational nexus with the object of legislation on this count.
The impugned judgment, the petition said, “reflects an issue bias against the LGBT persons, as evident from such observations like “the so-called rights of LGBT persons” and “miniscule fraction of the country’s population” which vitiates the judgment and renders it a nullity.
The apex court by its order of Dec 12, 2013 and subsequently in the review petition on January 28 upheld the validity of section 377, finding no constitutional infirmity in the penal provision that criminalised homosexuality.
It had set aside the Delhi High Court verdict of July 2, 2009 which had read down section 377, thus decriminalising consensual sex between adults of the same gender.