SC refuses to review its verdict on criminalising gay sex

New Delhi: In another setback to the LGBT community, the Supreme Court on Tuesday refused to relook at its verdict criminalising gay sex in the country.

A bench of justices H.L. Dattu and S.J. Mukhopadhaya, in in-chamber proceedings, dismissed a bunch of petitions filed by the Centre and gay rights activists including noted filmmaker Shyam Benegal against its December 2013 verdict declaring gay sex an offence punishable up to life imprisonment.

With the dismissal of review plea, the petitioners are left with only one option to get relief - by filing curative petition.

"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," the bench said in its brief order.

It also rejected the plea for oral hearing on the review petitions which are normally decided by judges in chamber without giving an opportunity to parties to present their views.

Read on: LGBT community rues SC's refusal to 'correct its mistake'

Anjali Gopalan, founder of Naz Foundation, which launched the initial case to decriminalise homosexual sex, said activist groups would now file a 'curative petition' to the Supreme Court.

A 'curative petition', the last stage of the appeal process, is intended to remedy 'gross miscarriages' of justice and is heard by a panel of five judges, including three of the most senior.

"The plan now is to file a curative petition. The curative petition would be heard by a larger bench of the Supreme Court - let's see what might happen then," Gopalan told media.

The Supreme Court had on December 11 set aside the Delhi High Court judgement decriminalising gay sex and thrown the ball into Parliament's court for amending the law. The judgement revived the penal provision making gay sex an offence punishable with life imprisonment in a setback to people fighting a battle for recognition of their sexual preferences.

If the curative petition fails, the issue will land in parliament's lap, meaning the law could take years to change. 

Observers say they see virtually no chance India's parliament could take such a controversial decision as reversing the law before national elections due by May. "The route through parliament would be a very long drawn-out process and at this point we have the elections coming," said Gopalan. 

While setting aside the July 2, 2009 judgement of the Delhi High Court, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court is legally unsustainable.

Amid huge outrage against the judgement, the Centre had also filed a review petition in the apex court seeking a relook to 'avoid grave miscarriage of justice to thousands of LGBT' persons who have been aggrieved by the apex court judgement contending it is 'unsustainable' as it 'suffers from errors'.

Seeking a stay on the operation of the judgement, gay rights activists and organisations, including NGO Naz Foundation, had said thousands from the LGBT community became open about their sexual identity during the past four years after the high court decriminalised gay sex and they are now facing the threat of being prosecuted.

They had submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community. The NGO had submitted there are a number of 'grave errors of law' and 'wrong application of law' in the judgement which needs to be corrected.

"This court has failed to consider the submission that Section 377 violates the right to health of men who have sex with men, since criminalisation of same sex activity impedes access to health services, including HIV prevention efforts. This contention was supported by the Ministry of Health and Family Welfare in this court," the review petition had said.

Challenging the verdict, Naz Foundation had said in its review plea that the verdict is contrary to the well-settled legal principles of the Constitution and proscribing certain sexual acts between consenting adults in private, demeans and impairs the dignity of all individuals under Article 21, irrespective of their sexual orientation.