SC agrees to consider curative petition on section 377 in open court
Curative petition is the last judicial resort available for redressal of grievances in court and is normally considered by judges in-chamber
New Delhi: The Supreme Court on Thursday agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality.
A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said that it will go through the documents and consider their plea.
Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case.
The petitioners, including NGO Naz Foundation which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, contended that there was an error in the judgement delivered on 11 December last year as it was based on old law.
"The judgement was reserved on 27 March, 2012 but the verdict was delivered after around 21 months and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgement," senior advocate Ashok Desai argued.
Other senior advocates Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers also supported Desai and pleaded for an open court hearing.
They submitted that the case should have been heard by the Constitution bench instead of two-judge bench which heard and delivered the verdict on the controversial issue.
The apex court had earlier dismissed a batch of review 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 upto life imprisonment.
The court had said it did not see any reason to interfere with the 11 December, 2013 verdict and had 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.
In December last year, the Supreme Court had set aside the Delhi High Court judgement decriminalising gay sex and thrown the ball in 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 2 July, 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".
The gay rights activists and organisations 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.
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The Bench noted that the possibility of retrieving electronic records is very little even though nearly two years have passed since hearing in this case began
The affidavit comes after four people from the gay and lesbian community urged the court to declare that marriages between any two persons irrespective of their sex be solemnised under the Special Marriage Act
Petitioner Tushar Gupta sought direction to re-prioritise the earlier recommended works so that the incomplete projects can be completed from the un-utilised amount