February 2, 2016 will be a big day for India's gay and lesbian community as after their almost two-year wait, a Supreme Court bench headed by Chief Justice T S Thakur will hear in open court the curative petition filed by Naz Foundation Trust and several eminent personalities, including film director Shyam Benegal, against its December 2013 verdict re-criminalising homosexual acts.
A curative petition is the last judicial resort available for redressal of grievances in court which is normally decided by judges in-chamber. In rare cases, such petitions are given an open court hearing.
WHAT THE PLEA SAYS?
Highlighting the fundamental principles of ‘justice is above all’ and ‘no party should suffer because of mistake of the Court’, the curative petitions filed on April 23, 2014 points out that this remains a fit case for the exercise of curative jurisdiction by the Supreme Court.
“Pertinently, the most glaring error in the Supreme Court decision is the failure of the Court to notice the effect of the amendment in the offence of rape in Section 375, IPC on Section 377. After the Criminal Law (Amendment) Act, 2013, Section 375 prohibits both penile vaginal and penile-non vaginal sexual acts between man and woman, without consent. By implication, such sexual acts between man and woman, which are consensual, are not criminalized anymore. Therefore, consensual penile non-vaginal acts in a heterosexual context would be out of the ambit of Section 377, otherwise the amendment in Section 375 would become meaningless. Presently, in effect, Section 377 only criminalises all forms of penetrative sex, i.e., penile-anal sex and penile-oral sex, between man and man, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of Article 14”, the plea filed through senior advocate Anand Grover said.
“The amendments came into force in February, 2013, long after the conclusion of final arguments in March, 2012 but way before the pronouncement of the judgment in December, 2013. The Court ought to have noticed the import of the statutory amendments and their effect on Section 377 and ruled accordingly” it said.
The Petition further notes the gross miscarriage of justice that has resulted from the Supreme Court decision in misreading the legislative intention in not amending Section 377 during the criminal law amendments in 2013. At the time of debating changes to the rape law, Section 377 was raised in the Lok Sabha, but the House refrained from discussing it, because the matter was sub-judice. “This legislative deference to judicial process cannot be seen as an endorsement of the existing Section 377 and by doing so, the Supreme Court has committed a manifest error of law.” it said.
The petition also highlights several other instances of patent errors on the face of the record in the judgment, including non-consideration of the main contentions of the Curative Petitioner and wrong application of law, which have caused manifest injustice, affecting lakhs of homosexual men and transgender persons in India.
Community members, meanwhile, are keeping their fingers crossed. The past two years have been a harrowing time for many of them.
They are also aware that only two such curative petitions have succeeded so far in the history of the apex court.
In March 2013, the SC allowed a curative petition against its 2009 judgment which held that if a woman kicked her daughterin-law or threatened her with divorce, it would not amount to cruelty under Section 498A of the Indian Penal Code. In April 2010, the SC also corrected a mistake in its verdict that had led to wrongful detention of four accused in a 21-year-old murder case without any hearing.
Naz claims after the re-criminalisation of gay sex, blackmail for extorting money (in many cases threatening to complain to police or parents after filming the act), intimidation, and harassment of gay and lesbian community members by organised gangs and police, have increased manifold - as have rapes and other kinds of torture.
The 2014-15 report recently released by Naz proves this.
Based on the calls that flood their helpline seeking counselling, the report for the first time categorised the kinds of harassment faced by members of the community and their grievances under various heads.
According to the report, 38 per cent of callers were confused or had problems with their sexuality and feelings. Thirty-five per cent of them suffered blackmail and intimidation from gangs and police, who extorted money. They also had problems dealing with break-ups and were not able to find a trustworthy partner.
Twenty-eight per cent of them wondered if they could have safe sex, and were under the fear that they would contract HIV after engaging in homosexual acts.
WHAT HC RULED
The Delhi High Court had on July 3, 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS."We declare Section 377 of IPC insofar as it criminalises consensual sexual acts of adults in private as violative of…the Constitution,” a bench headed by then HC chief Justice A P Shah .
“As it stands, the section denies a gay person a right to full personhood…” the bench had added.