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‘Open’ 377 hearing on court mind

New Delhi, April 3: The Supreme Court today agreed to “consider” forming a Constitution bench to decide the fate of India’s anti-gay sex law in “open court”.

Drawing fresh hope from a Khalistani terrorist’s case, the NGO Naz Foundation had today moved a curative petition challenging the apex court’s December 11 verdict re-criminalising all “unnatural sex”, including gay sex.

The court had dismissed a review petition on January 28 but the NGO has been enthused by Monday’s commutation of Devinder Pal Singh Bhullar’s death sentence.

A review petition is heard by the bench that passed the order but two or three other judges are drafted in to deal with a curative petition. Yet, like review petitions, curative petitions too have a near cent per cent failure rate.

But Bhullar’s case has been an exception — his relief came on a curative petition after the apex court had dismissed his writ and review petitions on the same issue.

“We will consider your plea… we will look into all your prayers,” the three-judge bench of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and N.V. Raman today said.

Naz counsel Anand Grover and another lawyer had urged an early and open-court hearing of the batch of petitions moved on the matter by several individuals and organisations.

Senior counsel Harish Salve, Mukul Rohatgi and Ashok Desai and others appearing for the various petitioners had sought the formation of a Constitution bench keeping in mind the profound questions of law the matter involved.

Rape act ‘effect’

If the Bhullar judgment has pepped it, Naz’s petition has cited as one of its key arguments another recent legal development: the passage of the Criminal Law (Amendment) Act 2013 that tightened sex crime laws including Section 375 (rape) of the Indian Penal Code.

The curative petition says that the apex court had “failed to notice” one of the rape law amendment’s legal consequences on the penal code’s Section 377, which criminalises “sex against the order of nature”.

“Prior to the amendment, Section 377 prohibited all penile, non-vaginal sexual acts, including anal sex and oral sex, between man and woman and (between) man and man,” the petition says.

But the current Section 375, after being amended by the 2013 act, “makes penile, non-vaginal sexual acts, between man and woman, without consent an offence”.

“By necessary implication, such sexual acts between man and woman, which are consensual, are no longer prohibited. Consequently, these consensual acts between man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant,” the petition argues.

With the 2013 act now going against the Section 377-mandated across-the-board prohibition against consensual “unnatural” sex, Naz has argued, consensual sex between two persons — irrespective of gender or form of sex — is no longer punishable.

Section 377 is a century-and-a-half-old colonial rule handed down by India’s then British rulers who have now legalised gay sex — even gay marriages — in their country.

On July 2, 2009, Delhi High Court had decriminalised private sexual acts between consenting adults. It had struck down provisions in Section 377 as unconstitutional on the ground that it violated an individual’s privacy and right to equal treatment under Articles 14, 15 and 21 of the Constitution

With the apex court re-criminalising gay sex, offenders can be jailed between 10 years and life.

The court, however, had said the Centre could have the anti-gay sex law revoked in Parliament if it wanted.

A divided government — its home ministry in favour of Section 377 and its health ministry against it — has avoided taking a clear stand on the politically sensitive issue.

Sonia and Rahul Gandhi and a few ministers, however, had expressed disappointment at the December apex court judgment re-criminalising gay sex.