India: Naz Foundation, a voluntary organization fighting for gay rights and the repeal of an anti-gay law, has filed a curative petition in the Indian Supreme Court requesting it to “correct” its verdict criminalizing same-sex relations.
The petition was filed April 1, reports hindustantimes.com.
A curative petition is the last option available to a litigant after exhausting all the appeals and dismissal of a review petition and is generally not heard in open courts.
The issue of gay rights has been the cause of much controversy after the Supreme Court in December chose to retain Section 377 of the Indian Penal Code reversing the Delhi High Court’s 2009 verdict decriminalizing consensual same-sex relations.
This 1860 British colonial-era law defines same-sex relations as “unnatural” and makes it a crime punishable by up to life imprisonment.
Maintaining that the Supreme Court verdict required “immediate reconsideration,” the petitioner contended that the judgment to decriminalize same-sex relations contained many “patent errors,” including non-consideration of its main contentions regarding violation of fundamental rights and mistake of law.
“We hope the Supreme Court would entertain our curative petition and grant us open court hearing enabling us to advance oral arguments,” senior lawyer Anand Grover, who has been representing Naz Foundation in this case, told hindustantimes.com.
On January 28, the Supreme Court declined to review its verdict re-criminalizing consensual same-sex relations even in private.
A two-member bench dismissed eight review petitions filed by gay rights organizations and the Union of India during in-chamber proceedings. Under Supreme Court rules, lawyers cannot argue review petitions unless ordered by the court.
Amid public outrage, the federal government had moved the Supreme Court with a plea to review its verdict, calling it a grave miscarriage of justice to thousands of LGBT persons.
Naz Foundation is a New Delhi based NGO working on HIV/AIDS and Sexual Health since 1994 and has led the movement to repeal Section 377. In 2001 it filed a lawsuit in the Delhi High Court seeking legalization of consensual same-sex relations between adults.
This led to the Delhi High Court ruling that criminalization of consensual same-sex relations violated the rights to dignity and privacy guaranteed by Article 21 of the Indian Constitution.
It also held that Section 377 offends the guarantee of equality in Article 14 and of Article 15 that forbids discrimination based on certain characteristics, including sex. It defined the word “sex” to include sexual orientation, and made discrimination on the basis of sexual orientation not permissible.
The Supreme Court instead of upholding the ruling scrapped it. That decision was decried by many gay rights activists and even some political parties such as the Communist Party of India and the Congress party who have included amending Section 377 as part of their election manifesto in India’s upcoming general elections.