SC refuses to review its verdict on homosexuality

PTI, NEW DELHI | 28 January 2014 21:10 IST

In another setback to the LGBT community, the Supreme Court on Tuesday (January 28) 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 Bengal 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.

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.

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.

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