New Delhi: Gay rights in India could take an unprecedented turn as the Supreme Court holds an open court hearing on 2 February to reconsider its 2013 judgment criminalizing homosexuality.

On 11 December 2013, the court overturned a Delhi high court verdict that had set aside a 1860 law that criminalized consensual sex among homosexual adults.

The court will hear a curative petition filed by Naz Foundation Trust, the non-governmental organization (NGO) that filed a lawsuit in the Delhi high court in 2001. In 2009, the high court had ruled that Section 377 of the Indian Penal Code (IPC), which prohibits “carnal intercourse against the order of nature with any man, woman or animal", was unconstitutional.

The curative petition filed before the top court, a copy of which Mint has reviewed, argues that the court has incorrectly held that a “minuscule fraction of population cannot claim fundamental rights". The petition has also alleged an issue bias by the court against the LGBT community through its references such as “the so-called rights of LGBT persons" in its 2013 judgment.

“This case is not only about certain sexual acts engaged in between a man and a man but pertains to the core constitutional values of equality, dignity, freedom and respect for diversity and inclusivity that underpin the idea of India. It is about the right to be who one is and be able to be true to oneself and to live with dignity, equality and without discrimination. It is about the right not to be criminalised for expressing one’s sexual personality," the petition argues.

Three senior most judges of the Supreme Court comprising chief justice T.S. Thakur, justices Anil R. Dave and J.S. Khehar will perhaps bring a sense of finality to the issue till the government decides to bring about a legislation.

Time line

2001: The Delhi high court takes up case filed by Naz Foundation, an NGO, challenging the constitutional validity of Section 377 of the IPC.

2004: The high court initially dismissed the petition saying that the NGO is not an aggrieved party.

2006: The high court’s dismissal is set aside by the SC and is remanded back to consideration by the high court.

2009: The Delhi high court holds that Section 377 of IPC, insofar it criminalizes consensual sexual acts of adults in private, is unconstitutional. The landmark verdict is immediately challenged before the Supreme Court.

2013: The Supreme Court overturns the Delhi high court verdict that set aside law that criminalized consensual sex among homosexual adults.

2014: The Supreme Court dismisses review petition in a chamber hearing. Naz Foundation files curative writ petition, the last legal remedy available.

2016: The Supreme Court to hold hearing of curative writ.

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