SC to hear curative petition on LGBT rights today

The curative is a rare remedy afforded by the highest court to correct, if any, errors apparent on the face of the record and grossly violative of principles of natural justice.

The Supreme Court had dismissed review petitions on the ground that Section 377 is constitutional and applies to sexual acts irrespective of age or consent of the parties.

In a few hours, the Supreme Court will take a final call on whether Section 377 of the Indian Penal Code (IPC), which criminalises consensual sexual acts of Lesbian, Gay, Bi-sexual and Transgender (LGBT) adults in private, amounts to denial of their rights to privacy and dignity and results in gross miscarriage of justice.

A Bench of the three senior-most judges — Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar — will on Tuesday hear a batch of eight curative petitions filed by parents, civil society, scientific and LGBT rights organisations against a January 28, 2014 judgment by the Supreme Court dismissing their review petitions on the ground that Section 377 is constitutional and applies to sexual acts irrespective of age or consent of the parties.

The curative is a rare remedy afforded by the highest court to correct, if any, errors apparent on the face of the record and grossly violative of principles of natural justice in the court's own earlier judgment.

The three senior-most judges are an essential part of a curative Bench. In this case, the judges — Justices GS Singhvi and SJ Mukhopadhaya — who earlier heard and passed judgments in this litigation have since retired.

In January 2014, the apex court had dismissed a plea by the petitioners to review its original appeal judgment on December 11, 2013 which set aside the historic and globally accepted verdict of the Delhi High Court. The High Court had declared Section 377 unconstitutional, and said it was in violation of the fundamental rights enshrined in Articles 14, 15 and 21 of the Constitution.

The High Court, led by its then Chief Justice A.P. Shah, had read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.

The open-court hearing at 3 p.m. is a victory of sorts by itself for petitioners who have waged an almost two-year since filed their curative petitions in March 2014. They have contended that the review judgment, if not corrected, may result in “immense public injury”.