SC order: Will prove Sec 377 socially irrelevant, say LGBT activists

A curative petition can be filed if the SC dismisses a review petition. In this the petitioner is allowed to specifically point out the grounds which had been pointed out in the review petition filed earlier.

Shruti Dhapola January 29, 2014 07:34:00 IST
SC order: Will prove Sec 377 socially irrelevant, say LGBT activists

The Supreme Court on Tuesday refused to accept a petition seeking a review of its judgement on Section 377.  The apex court in December 2013 had struck down an earlier Delhi High Court decision that de-criminalised gay sex. 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 decision by Justice Singhvi and Justice Mukhopadhaya.

According to Anand Grover, part of the lawyer's collective and the lawyer for the Naz Foundation which has been one of the earliest parties to fight the case, the decision is disappointing. He told Firstpost, "We are very disappointed with the decision. The battle is not yet over, we will do whatever is necessary to do continue with our fight, including a curative petition."

The SC order read, "Application for Oral hearing is rejected. 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."

SC order Will prove Sec 377 socially irrelevant say LGBT activists

A participant at a pride march. AFP.

Admittedly, for the LGBT rights activists, the dismissal of the review petition is disappointing. Arvind Narrain, who’s a lawyer with the Alternative Law Forum says that thought the next logical step would be to file a curative petition, the chances of a positive outcome are slim.

He says, “The only legal step we can now take is filing a curative petition where the petition will be presented in front of five judges. A strong case has to be made to convince the judges that justice has not been served. If the curative petition is dismissed, then of course an entirely new petition is likely to be filed.”

A curative petition can be filed if the SC dismisses a review petition. In this the petitioner is allowed to specifically point out the grounds which had been pointed out in the review petition filed earlier.

The fact that the SC refused a review has left many activists and the gay community quite disappointed. “It is a disgrace that the SC refused to even hear the review petition. Even though we had been told that 99 percent of reviews are rejected, we were hopeful that given it was such a high-profile case, with so much public support, the review petition would be accepted,” says Ashok Row Kavi, of the Hamsafar trust in Mumbai which has extensively worked on the issue of LGBT rights.

Gautam Bhan, LGBT activist and author of the book “Because I Have a Voice: Queer Politics in India”says, “This is the same Supreme Court which decided to relook at the Bhullar judgement and the question of inalienable rights. For the same court to then brush aside the review request from the community, even the Union of India is shocking.”

Adds Bhan, “It’s like saying that the last two months of anger, protest, were all wrong. As a non-lawyer, I can say that the judgement by Justice Singhvi is wrong. To not agree to listen to the arguments, is just disappointing. The SC has lost the ability to look at its deficiencies.” Say Kavi, “The SC has not even bothered to take a relook at over 200 affidavits that were submitted to the court to showcase how the law is being misused against the community. They are not even interested in reviewing the material.”

So what is the next step for the community? “Faith in the legal system has been shaken. Unfortunately, if there is another petition, thanks to the Section 377, there will be no shortage of affidavits to prove that it is being misused, to show the kind of harassment, extortion that LGBT people continue to face,” points out Bhan.

But the aim is to go beyond the legal option. “We need to create a really strong support structure for the community. The good thing is that we do have that support for now from several quarters. The aim has to be to render this law socially irrelevant,” says Bhan. The SC snub is also not being being seen as an end. “There is a difference between 2009 and 2014. We will win the the fight, although it will be much tougher now. But who knows, with curative petition it could take much longer, say two or even five years” says Kavi.

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