Gay sex: SC may hear curative petition in open court

Apex court on Dec 11 set aside order decriminalising homosexuality

Gay sex: SC may hear curative petition in open court

A small glimer of hope emerged for India’s gay community on Thursday as the Supreme Court said it would consider hearing in open court a curative petition on its December 2013 decision to re-criminalise homosexuality.

A battery of senior lawyers led by Ashok Desai urged a three-judge bench presided over by Chief Justice P Sathasivam to hear the pending curative petition in open court.

Naz Foundation, an NGO, along with others have filed the curative petition, which is the last resort to changing a Supreme Court verdict. 

Curatives are heard in open court only in rare cases - when the court finds that some gross illegality might have occurred through a judgment.

Desai, along with Harish Salve, Mukul Rohatgi and Anand Grover urged the bench, also comprising Justices Ranjan Gogoi and N V Ramana, to hold an open court hearing.

They pointed out that the verdict was delivered 21 months after the case was heard on March 27, 2012. They said a lot of changes had taken place in the interim period, which were not considered by the court. They also said that the case should have been decided by a larger bench, and not a bench comprising only two judges. The judgment was delivered by Justices G S Singhvi (since retired) and S J Mukhopadhaya.

The court had on December 11, set aside a 2009 judgment of the Delhi High Court that had decriminalised homosexuality among the consenting adults. 

Therefore, consensual anal intercourse between adults is an offence, punishable with a life term, defined under Section 377 of the Indian Penal Code, 1860. The Delhi HC had “read down” the law so that it would not be applicable to consensual sexual acts.

On January 28 the court refused to reconsider its verdict and dismissed review petitions. Naz Foundation and a group of activists as well as the Union government had sought a reversal of the verdict.

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