The Supreme Court on Tuesday trashed the hopes of the lGBT community by refusing to review its judgement that made gay sex a criminal offence. On December 11, 2013 a two-judge bench of the apex court upheld the Constitutional validity of IPC Section 377 that penalised gay sex. The Supreme Court (SC) on Tuesday refused to entertain the review petition filed by the Centre and gay rights activists.
After hearing the petitions in chambers, a bench of Justices Hl Dattu and SJ Mukhopadhaya said: “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.”
This has come as a major setback for the lGBT (lesbian, gay, bisexual, transgender) community, many of whom had approached the apex court seeking review of the judgement. The next option would be to file a curative petition, which would be heard by a composition of four or more judges. The two judges who heard the review plea will also be present.
The Centre, which had backed the demand by the lGBT community to de-criminalise sexual activity between two consenting adults in private, told the apex court in its review petition that the Centre found no error with the July 2, 2009 decision of the Delhi High Court allowing gay sex. With its review plea dismissed, the Centre is unlikely to take a quick decision to file a curative petition as it is an election year.
The apex bench of Justices GS Singhvi (since retired) and SJ Mukhopadhaya had held on December 11 that the High Court, in its anxiety to protect the rights of the lGBT community, lost sight of the fact that Section 377 punished certain acts and not any class of individuals. To this extent it did not violate the fundamental rights of citizens, the bench held.
Moreover, the court maintained that the lGBT population constituted only a “minuscule fraction” of the country’s population. In over 150 years, since the enactment of Section 377, only 200 people were prosecuted with no evidence of any case where consenting adults met harassment at the hands of the police, the judgement added.
However, the court left it open for the legislature to consider either deleting IPC Section 377 or carve out an exception by legitimising gay sex between consenting adults. The 172nd law Commission Report had specifically recommended deletion of IPC Section 377 but the legislature chose not to amend the law or revisit it.
Even the Attorney-General had argued in court saying that all that the Centre had to do was insert a proviso in Section 377 to clarify that “nothing contained therein shall apply to any sexual activity between two consenting adults in private.”
While upholding the constitutional validity of Section 377, the court left a window open by suggesting, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney-General.”