Recriminalisation betrays bias against gays: curative petition

Updated - December 04, 2021 11:10 pm IST

Published - April 03, 2014 12:14 pm IST - New Delhi

Gay rights activists during a protest against the Supreme Court verdict to uphold a law that criminalises gay sex, in Guwahati. File photo: Ritu Raj Konwar

Gay rights activists during a protest against the Supreme Court verdict to uphold a law that criminalises gay sex, in Guwahati. File photo: Ritu Raj Konwar

Gay activists and the Naz Foundation on Thursday moved the Supreme Court with a curative petition, seeking to correct its judgment which upheld the validity of Section 377 of the IPC (criminalising homosexual relations).

Responding to a plea by senior counsel Anand Grover for an open court hearing, Chief Justice of India P. Sathasivam said he would consider the request. Curative petitions are heard in the judge’s chamber and if found fit for admission, will be posted for hearing in open court.

The Delhi High Court had held that Section 377 of the IPC violated Articles 14, 15 and 21 of the Constitution but the apex court on December 11, 2013 set aside this ruling and upheld the validity of this Section. On January 28 this year, it dismissed a batch of review petitions.

The petition, challenging both the December 11, 2013 judgment and the January order, said: “The effect of recriminalisation 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.” The impugned judgment “contains a number of other patent errors on the face of the record including non-consideration of the main contentions of the curative petitioner, which pertain to violation of fundamental rights, mistake of law being rendered contrary to binding legal principles and precedents under Articles 21 and 14, thereby requiring immediate reconsideration by this court in the exercise of its inherent powers.” Further, “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. This finding has caused immense public injury and, if not rectified, would have dangerous implications for enforcement of fundamental rights of citizens.” The judgment reflected an issue of bias against an LGBT (lesbian, gay, bisexual or transgendered) person, the petition said. Justices Ranjan Gogoi and N.V. Ramana were on the Bench along with the CJI.

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