A four-judge bench considered the plea for an open hearing of the curative petition challenging the order
Mumbai: The Supreme Court on Tuesday agreed to hear arguments on admitting a curative petition challenging the apex court’s December verdict criminalizing same-sex intercourse.
In December the court upheld the colonial-era Section 377 of the Indian Penal Code, which penalizes same-sex intercourse with up to 10 years of imprisonment. A curative petition, which is typically heard by judges in chambers, is the final recourse for challenging a Supreme Court judgment.
On Tuesday, a four-judge bench comprising chief justice P. Sathasivam and justices R.M. Lodha, H.L. Dattu and S.J. Mukhopadhaya considered the plea for an open hearing of the curative petition filed by the Naz Foundation Trust, filmmaker Shyam Benegal, parents of lesbian, gay, bisexual and transsexual persons, academicians, mental healthcare professionals and Voices Against 377, an umbrella of non-government organizations.
The hearing in the Koushal case, as the Section 377 case is known, is fixed for next week; where the bench will hear the petitioners and decide if there is merit in their argument to reopen the case.
If the court agrees with the petitioners, it will issue a notice to the other side—astrologer Suresh Kumar Koushal and some religious organizations—for a full hearing by a new bench.
Tuesday’s move follows a 15 April ruling by another bench of the Supreme Court, which granted third gender status to transgenders, declaring that they must be guaranteed healthcare, jobs and education by both the states and centre.
The National Legal Services Authority (Nalsa) vs Union of India judgement—which referred to how the “colonial era" Section 377 law had been used to harass and discriminate against transgender people—was considered by the bench while deciding on the matter of the curative petition.
The Nalsa judgement also brought up the issue of discrimination faced by India’s other sexual minorities which goes against Article 15 of the Indian Constitution that guarantees equality before the law.
It said, “Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution."
This rationale of reading both gender identity and sexuality into the constitution, said Anand Grover, a senior lawyer in both cases, is the basis to reopen the Koushal case.
On 11 December 2013, the Supreme Court overturned a 2009 Delhi high court verdict that had been hailed globally as a human rights victory; the high court ruled that Section 377 did not apply to consenting adults.
In January, the same petitioners had filed a review petition before justices Mukhopadhaya and Dattu to reopen the case for hearing. The review petition was denied.
A curative petition was created by the apex court in 2002 as a mechanism for aggrieved parties to apply for relief after the dismissal of a review petition. Since then, only two have been admitted.
The timeline for the hearings is unclear. The date for next week’s hearing will be listed the night before it is scheduled. Other hearings, if they are to take place, may be scheduled once the court is back from recess on 29 June.
What’s more, two of the judges who were on the bench that heard the matter on Tuesday are set to retire this year. While the chief justice will retire on 27 April, his successor, Justice Lodha, will retire on 27 September.
“The court will have to decide whether the threshold for a curative petition has been satisfied by this judgment," said Supreme Court advocate Menaka Guruswamy, who is the counsel representing Benegal.
The curative petitions filed by the petitioners earlier this month argued that there are apparent errors in the face of the record in the Koushal judgment, which represented a gross miscarriage of justice.
For example, the judgment pointed out that the stand of the Union of India was unclear. However, written submissions filed by the attorney general during the hearing stated that the centre did not find any legal error in the Delhi high court verdict of 2009 which decriminalized homosexuality, and therefore did not file any appeal against it.
The petitioners had also filed evidence of abuse faced by individuals due to the archaic law. Yet, the Koushal judgment said that only 200 persons have been prosecuted under section 377 in the last 150 years.
“The case is ultimately about a consistent interpretation of the constitution which is in consonance with the jurisprudence of this court when it has confronted social and historical disadvantage and discrimination as in the case of caste, gender or even disability," Guruswamy added.
Since the December verdict, the LGBT (lesbian, gay, bisexual, and transgender) community has received support from several quarters. Political parties, including the Congress and Communist Party of India (Marxist), included the matter of their rights in their national manifestos.
“You can think of this as a beginning of an opportunity. We hope that the Supreme Court will take this chance to self-correct, and fulfil its role as a constitutional court. The granting of oral arguments acknowledges a need to reconsider the Koushal judgment," said Gautam Bhan, a Delhi-based activist and member of Voices Against 377.