Supreme Court’s consent to hear curative petitions filed by gay rights’ activists in an open court

A Supreme Court bench headed by Chief Justice P Sathasivam gave its consent to consider the plea for an open court hearing on curative petitions, which is the last judicial option available for redressal of grievances in court. Judges in-chamber usually considers these petitions wherein parties are not given an opportunity to argue the case. Gay rights activists have filed the curative petitions against the Supreme Court’s verdict criminalizing homosexuality. The contention of the petitioners, which included NGO Naz Foundation which has been heading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, was that there was an error in the judgment delivered on December 11 last year as it was based on old law.

On December 11, 2013 Live law, reported that a Supreme Court bench comprising Justice G S Singhvi and S J Mukhopadhaya in Suresh Kumar Koushal and Anr v. Naz Foundation & Ors, , had set aside Delhi High Court judgment which had decriminalized gay sex among consenting adults in private. The apex court while pronouncing the verdict said that it was for the legislature to look into desirability of deleting section 377 of IPC. It however allowed appeals filed by various social and religious organizations for making gay sex a criminal offence. On July 2, in 2009, gay sex was decriminalized by the Delhi High Court, which is an offence under Section 377 of the Indian Penal Code and had ruled that sex between two consenting adults in private would not be an offence.

Senior advocate Ashok Desai told the bench that the judgment was reserved on March 27, 2012 but it was after almost 21 month that the verdict was delivered and during this period various changes took place including amendment in laws which the bench which delivered the judgment did not take into consideration. Other senior advocates Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers who also requested for an open court hearing, supported Mr. Desai. According to them instead of two-judge bench, which heard and delivered the verdict on the debatable issue, should have been heard by the Constitution bench.

Live law reported that earlier the apex court had dismissed a batch of review petitions filed by the Centre and gay rights activists against its December 2013 verdict declaring gay sex an offence punishable up to life imprisonment. Justice HL Dattu and Justice SJ Mukhopadhaya who heard the plea for the review petitions in  chambers refused to accept the Centre’s plea for reviewing the earlier decision by Justice Singhvi and Justice Mukhopadhaya.