Petitions challenging 2013 verdict referred to 5-judge bench
The Indian LGBT community rejoiced as the Supreme Court reopened the debate over the ban on homosexuality. The apex court referred the eight curative petitions challenging the earlier December 2013 verdict to a five-judge bench. The SC contended that the case involved important constitutional issues. LGBT activist Mohnish (present in the courtroom) said this was "definitely a step forward," while those outside cheered on.
Section 377 comes under Chapter XVI of the Indian Penal Code and was introduced during the colonial rule, criminalizing any sexual activity "against the order of Nature". The section initially covered only anal sex, later included oral sex and covers penile penetration of "artificial orifices". It provides a blanket prohibition "on all penile-non-vaginal sexual acts" under the ambiguous term, "un-natural sex".
Under Article 136 of the Constitution of India, the Supreme Court may entertain a curative petition and reconsider its judgement/order in order to "cure gross miscarriage of justice." It can only be filed if a Senior advocate certifies that it meets the necessary requirements.
Lawyers Collective filed a writ petition in the Delhi High Court in 2001 against Section 377 on the grounds that it violates the right to privacy, dignity and freedom of expression. In 2004, the petition was dismissed by the HC and a Special Leave to Appeal was filed in 2005. In 2006, the SC observed that the constitutionality of Section 377 "does require consideration".
The Delhi High Court struck down the provision of Section 377 of the Indian Penal Code which "criminalized consensual sexual acts of adults in private." A Division Bench of Justice A.P. Shah and Justice S. Muralidhar stated that Section 377 is "violative of Articles 21 an 14 of the Constitution". They added that discrimination based on sexual orientation violates Article 15 of the Constitution.
In a blow to gay rights in India, the Supreme Court overturned a High Court verdict that struck down Section 377 of the IPC. The SC upheld the controversial law, stating that the "declaration made by the Division Bench of the HC was legally unsustainable." It added that the issue was one for Parliament to legislate on and take whatever remedial action deemed necessary.
The Supreme Court refused to accept a petition seeking a review of its judgement on Section 377. Justice HL Dattu and Justice SJ Mukhopadhaya who heard the plea for the review petition in the private chambers refused to accept the Centre's plea for reviewing the earlier SC decision. Experts stated that the only remaining course of action for activists would be a curative petition.
The Supreme Court agreed to hear arguments on admitting a curative petition challenging their previous verdict criminalizing same-sex intercourse. The petition was 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 NGOs. The court has not yet set a date for hearing the curative petition.
The Supreme Court is set to hear a curative petition on the issue of Section 377 on February 2. The petition, filed by gay rights activists and Naz Foundation is against the apex court's 11 December 2013 judgement upholding the validity of Sec 377. It also seeks to review the SC's January 2014 order by which it had dismissed review petitions on the matter.