Gay sex ban stays, SC rejects plea to review
Section 377 IPC: Govt can now either file curative petition or go to Parliament to amend law.
The Supreme Court on Tuesday refused to reconsider its verdict that affirmed the legality of Section 377 and criminalised gay sex, dealing a severe blow to the government’s attempt to get the law changed through a legal — rather than parliamentary — process.
Gay rights activists described the Supreme Court’s decision as disappointing.
“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,” a bench of Justices H L Dattu and S J Mukhopadhaya said, dismissing a bunch of eight petitions in chamber proceedings.
Two options are now available before the government and the LGBT community to have the law overturned: the legal remedy of filing a curative petition in the Supreme Court, arguing the question of the constitutionality of IPC Section 377; and seeking the parliamentary route to amend the law.
Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal” is punishable with imprisonment from 10 years to life. On December 11, 2013, the Supreme Court ruled that gay sex was an offence “irrespective of age and consent”, overturning the July 2009 Delhi High Court verdict that found Section 377 to be violative of Articles 14, 15 and 21 of the constitution.
Gay rights groups described Tuesday’s decision as a setback to the rights of the LGBT community and, indeed, to the fundamental rights of all Indians.
They said: “We will continue to wage the legal battle against Section 377 as there is an urgent and compelling case for the law to go. We will pursue all legal options, including curative petitions, to again assert that the court has made an egregious error in this case by denying the right to equality and dignity to a section of the population.”
Organisations such as Naz Foundation and Voices Against 377, and individuals such as film director Shyam Benegal and parents of LGBT persons had, along with the government, filed review petitions in the court, seeking a rethink of the December verdict.
In a curious submission, the Centre had described its own law as “unlawful” and “unconstitutional”, and sought a review in order “to avoid grave miscarriage of justice to thousands of lesbians, gays, bisexuals and transgenders (LGBT), who have been put at the risk of prosecution and harassment following the re-criminalisation” of their sexual identities.
Pleading for a stay on the verdict, the government had said criminalising sexual expressions “strikes at the root of the dignity and self-worth” of the LGBT community, thousands of whose members had come out following the 2009 judgment, but who had suddenly become “vulnerable to abuse and discrimination and require(d) immediate relief”.
Gay rights organisations argued that the verdict was contrary to well-settled legal principles of the constitution, and that proscribing certain sexual acts between consenting adults in private demeaned and impaired the dignity of all individuals under Article 21, irrespective of sexual orientation.
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