What next: review petition and a fresh case calling for repeal of Section 377

If filed,the petition will be over and above a review petition in the Supreme Court.

Written by Abantika Ghosh | New Delhi | Published: December 11, 2013 9:40 pm

Still recovering from the shock of the Supreme Court judgment overturning the Delhi High Court order decriminalising consensual gay sex,the Naz Foundation and other petitioners are exploring the option of filing a fresh case seeking repeal of the contentious Section 377 of the Indian Penal Code.

If filed,the petition will be over and above a review petition in the Supreme Court seeking a relook at Wednesday’s order,said a lawyer associated with the gay rights movement. 

Section 377 deals with “unnatural offences”,laying down that “whoever voluntarily has carnal intercourse against the order of nature with any man,woman or animal shall be punished with imprisonment for life,or with imprisonment of either description for a term which may extend to ten years,and shall also be liable to fine”.

When Naz Foundation and its fellow petitioners had moved the Delhi High Court in 2001 seeking legalisation of gay sex between consenting individuals,it had not sought that Section 377 be struck down — merely that it be read down to make an exception of gay sex. That exception was granted. 

The decision not to seek scrapping of the contentious IPC section,says Naz founder Anjali Gopalan,was conscious as at that point this was the only penal provision available to deal with child sex abuse. Twelve years later,a dedicated law to deal with child sex abuse — Protection of Children from Sexual Offences (POCSO) Act,2012 — has been enacted. So,what to gay rights activists was the last line of defence for Section 377,is no longer valid.

“We are yet to decide on the next course of legal action. But as we explore the options of a fresh petition,one of the things that post POCSO we can look at is to file a petition seeking repeal of Section 377. But no call has been taken yet,” said a lawyer associated with the case. 

“The problem is that a lot of people equate homosexuality with paedophillia. A lot of the disquiet is for lack of understanding. The decision not to move for repealing was taken at a time when there was no other law to deal with child sex abuse. Now there is one but we have not discussed the future course of action yet,” said a “disappointed” Gopalan. 

Anand Grover of Lawyers’ Collective said that as for the review petition,it is almost certain that it will be filed,though the track record of the fate of these petitions is “abysmal”. The review petition is heard by the same Bench that had delivered the original order but in the present case,as Justice G S Singhvi has retired,this will be heard by a bench comprising Justice S J Mukhopadhyaya and one other judge. After that there is the option of a curative petition that will be heard by a bigger bench. 

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