Gay law ball in govt court

New Delhi, Jan. 28: The Supreme Court today dismissed the review petitions that challenged its judgment re-criminalising gay sex, thus putting the onus on the Centre to decide whether to revoke the anti-gay sex law.

“Application for oral hearing is rejected. We have gone through the review petitions and the connected papers. We see no reason to interfere with the order impugned,” the bench of Justices H.L. Dattu and S.J. Mukhopadhaya said.

The Centre and Naz Foundation, the NGO on whose original petition Delhi High Court had de-criminalised private and consensual gay sex among adults, had moved the petitions along with five individuals seeking a review of the apex court’s judgment of December 11 last year.

If today’s order is a blow to pro-gay activists, it’s also a setback for the Centre which had so far chosen the easy option of avoiding a clear stand on the sensitive issue.

While the Union home ministry supported the clause in Section 377 of the Indian Penal Code that criminalised sex “against the order of nature”, the Union health ministry had sought deletion of the provision.

Although the December 11 judgment had said the Centre was free to delete the anti-gay sex clause, the government had preferred to wait for the outcome of the review petitions.

However, the government will be under pressure to act because, a day after the judgment, Sonia Gandhi had expressed disappointment at the apex court’s position and, according to sources, told the Centre to “take immediate corrective steps”. Rahul Gandhi had echoed her.

The Centre now has the options of filing a curative petition, or bringing in an ordinance against the anti-gay sex law, or summoning a Parliament session to delete it.

Despite repeated efforts, Union law minister Kapil Sibal was not available for comment till late evening. A text message evoked no response.

Review petitions are usually heard by the bench that passed the original order. Today’s judgment, however, was passed by a bench headed by Justice Dattu as Justice G.S. Singhvi, who headed the bench that passed the December 11 order, has retired.

A curative petition is heard by the judges who passed the review judgment together with two or three other judges. But like review petitions, curative petitions have a high failure rate.

Section 377, a relic of the British Raj, criminalises “carnal intercourse against the order of nature with any man, woman or animal”, thus bringing under its ambit gay sex. However, the section does not automatically make a homosexual a criminal unless they engage in gay sex.

On July 2, 2009, Delhi High Court had struck down the provision as unconstitutional on the ground that it violated the rights to privacy and equal treatment before the law.