Overview

The LGBTs’ Curative Prayer!

When the mentioning was done on the issues of the Rights of LGBT (lesbian, gay, bisexual, and transgender) Community, on 3rd April 2014, before the 3 judge bench of the Supreme Court headed by Hon’ble Chief Justice P. Satashivam, everybody knew that it was in effect the last prayer, because beyond it there is no redemption for the LGBT community, except for the legislative action and given the moral compulsions that may never happen.

The mentioning was done by the renowned Senior Advocates Mr. Harish Salve, Mr. Ashok Desai and Mr. Mukul Rohatgi. The Hon’ble Bench, in view of the tremendous importance and implications of the matter the Hon’ble Apext Court conceded the request on behalf of the Petitioner for an open court hearing. The case relating to Section 377 of the Indian Penal Code (IPC) dealing inter alia with the rights of LGBT community has reached now reached its point of no return.

The Petitioner NAZ Foundation, a Delhi based NGO, has filed this curative petition before the Supreme Court, which has earlier upheld the constitutional validity of Section 377 IPC vide its Final Order 11th December, 2013 and Review Order dated 28th January 2014. Through that the Hon’ble Court had set aside a Delhi High Court judgment dated 2nd July 2009(which had held Section 377 IPC as constitutionally invalid.) The High Court had held in 2009 Judgment that Section 377, IPC, inasmuch as it criminalized consensual sex in private, violated Fundamental Rights of the citizens under Articles 14, 15 and 21 of the Constitution.  The Curative Petition is seeking cure of alleged gross miscarriage of justice.

 The Arguments

The Critical Argument

By filing the curative petition, the Petitioner is exhausting its final remedy available for reconsideration of the aforesaid judgment on an important ground that, the Supreme Court has not considered the implication of intermittent amendment to Article 375 of the IPC among other grounds. It is being specifically argued that the impugned judgment has failed to notice the effect of the change in Section 375 of IPC has had on Section 377, inasmuchas it has rendered it patently discriminatory against the LGBT community, given that Section 377 is no longer applicable to penile non-vaginal acts between man and woman. That the failure to notice the effect of change in law (i.e. Section 375) on Section 377 by the Supreme Court has resulted in grave miscarriage of justice.

Need to prevent Otiosity of Amended Section 375 IPC

It is the case of the Petitioner that, 2013 amendment to Section 375 of IPC will have direct impact on the interpretation of Section 377. That prior to the aforesaid amendment, Article 377 prohibited all penile non-vaginal sexual acts including anal and oral sex, irrespective of genders involved. The amendment to Section 375 makes non-vaginal sexual acts, between man and woman, without consent an offence. That by necessary implication such sexual acts between man and woman, which are consensual, are no longer prohibited. Therefore, the consensual acts between man and woman have been conclusively taken out of the ambit of Section 377. In case this is not read in this fashion, the amended Section 375 would be rendered otiose.

Prevent Unreasonable Classification

It is argued that Section 377 now only criminalizes same gender penetrative sex including penile-anal sex and penile-oral sex, which is ex –facie discriminatory against LGBT community and hence violative of Article 14. That amendments to Section 375 were carried out, while the judgment was reserved by the Supreme Court. There was no occasion to consider this issue at the time of hearing. It is further argued that the effect of Section 377 on the fundamental rights of LGBT community has to be considered while assessing constitutional validity.

Even a Single Person may be a class in Itself

It is strongly contested in the curative petition that the Supreme Court in its order has incorrectly held that a miniscule fraction of population cannot claim protection of fundamental rights. This by implication means that Part III of the Constitution is irrelevant for all individuals and various minorities in India.  That to deny the protection and enforcement of fundamental rights to minorities and minuscule fractions in the country is contrary to the settled jurisprudence of the Supreme Court on the protection and expansion read in for fundamental rights.

It is also argued that the aforesaid findings have caused tremendous public injury and in case the course is not corrected, it would have volatile and dangerous implications on the enforcement of fundamental rights of citizens and primarily individuals and minorities.

Is there Bias Against LGBT Community?

There is also an attempt made in the curative petition to show issue bias against the LGBT persons on the part of the Supreme Court while rendering the judgment,in as much as the court in its judgment has referred to the rights of LGBT community as “the so called rights of LGBT persons” and the Court referring to the LGBT community as “miniscule fraction of the country’s population.” The curative petition is invoking the fundamental rights of lakhs of LGBT persons. That the initial de-criminalization by the Delhi High Court and the subsequent re-criminalization by the Supreme Court has caused immense prejudice to the LGBT community, on whom the domiciles’ sword of prosecution is always hanging in view of association between homosexuality and penile-anal / penile-oral sexual acts.

Conclusion

It is interesting to note as to how the case will progress now, in view of the fact that Justice Singhvi and Justice Ganguly who were the authors of the controversial judgment have both since retired and the curative petition will have to be now listed before and decided by a fresh set of Judges of the Supreme Court. It will also be interesting to note how the various appellants (predominantly individuals and NGO’s who have religion based agenda) who have filed separate civil appeals against the High Courts 2009 order and interveners will react to these developments and what will their legal strategy be. As far as the Union Government is concerned, it had earlier decided not to contest the Delhi High Courts order. It will also be interesting to note what will be the stand of the new Government which will be installed after the 2014 General Elections, before the Supreme Court.