BackSupreme Court refuses to review verdict criminalizing gay sex
Move leaves activists with the option of going for a curative petition or pressurizing the govt to amend the IPC
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New Delhi: The Supreme Court on Tuesday refused to review its order criminalizing gay sex, rejecting review petitions filed by the central government and several non-government organizations.
“Application for oral hearing is rejected. 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," said the order by judges H.L. Dattu and S.J. Mukhopadhyay.
On 11 December, the Supreme Court overturned a 2009 Delhi high court verdict decriminalizing consensual sex among men. The Delhi high court had set aside an 1860 law, and the Supreme Court’s move restoring the Raj era legislation drew criticism from rights activists as well as political leaders. The apex court, however, had said that the government was free to annul the law through legislation.
The Delhi high court had ruled that section 377 of the Indian Penal Code (IPC), which criminalizes sex between men, was unconstitutional. Section 377 of India’s legal code, IPC, drafted by the British colonial rulers, has drawn criticism from public health activists as a barrier in the fight against HIV/AIDS.
The Supreme Court’s refusal to review the order has left the activists with the option of going for a curative petition or pressurizing the government to amend the IPC. Curative petition derives its legitimacy from Article 142 of the Constitution which empowers the court to do “complete justice".
However, there are limited grounds that permit such petitions. The process for filing such a petition is also complicated. As per a Supreme Court precedent, a senior advocate must certify that the same grounds had been argued in the review proceedings and that they had been dismissed. The curative petition must then be circulated to a bench of three senior-most judges of the Supreme Court and the judges who delivered the ruling. If the majority of these judges agree that the matter needs consideration, then the same bench that had decided on the matter originally, will hear it again.
In its December order, the apex court said that the government was free to annul the law through legislation but a number of gay rights activists, including Naz Foundation, a non-governmental organization, sought a stay on the order.
Their petition said thousands from the LGBT (lesbian, gay, bisexual and transgender) community in India who had become open about their sexual identities after the 2009 Delhi high court order are now facing the threat of prosecution.
The activists also said criminalizing gay sex was a violation of the fundamental rights of the LGBT community.
Review petitions are generally considered in judges’ chambers and others are not allowed during the proceeding.
Last year, the ruling Congress party’s president Sonia Gandhi urged Parliament to address the matter.
“I am disappointed that the Supreme Court has reversed the previous Delhi high court ruling on the issue of gay rights. The high court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution," she had said.
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