SC dimisses petition to review its verdict on 377

The apex court took up petitions filed by the Centre and LGBT rights activists seeking review of its earlier verdict on 11 December 2013 declaring gay sex an offence.

Gay rights activists submitted that there are a number of grave errors and wrong application of law in the SC judgement that needed to be corrected. Amid huge national and international outrage against the judgement, the Centre also filed a petition seeking review to avoid serious miscarriage of justice to thousands of gay persons.

The Supreme Court order declaring gay sex an offence provides for punishment up to life imprisonment. A bench of justices H L Dattu and S J Mukhopadhaya took up the petition in chamber to decide whether the verdict needs to be re-looked or not. Seeking stay on the operation of the judgement, gay rights activists, including NGO Naz Foundation, said thousands from the LGBT community became open about their sexual identity during the past four years after the high court decriminalised gay sex and they are now facing the threat of being prosecuted. They submitted that criminalising gay sex amounts to violation of fundamental rights of the LGBT community.

‘This court has failed to consider the submission that Section 377 violates the right to health of men who have sex with men, since criminalisation of same sex activity impedes access to health services, including HIV prevention efforts. This contention was supported by the ministry of health and family welfare in this court,’ the petition said. The Centre sought review to ‘avoid grave miscarriage of justice to thousands of LGBT’ persons who have been aggrieved by the apex court judgment contending it is ‘unsustainable’ as it ‘suffers from errors’.

While setting aside the 2 July 2009 judgement of the Delhi HC, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the high court is legally unsustainable. In a big blow to the LGBT community, the Supreme Court had on 11 December set aside the Delhi High Court judgement decriminalising gay sex and threw the ball into Parliament’s court for amending law.

The much-awaited verdict, reversing the four-year-old high court judgement, drew sharp criticism from people belonging to different fields who termed it a ‘black day’ and a ‘lost opportunity’ for the apex court to expand the constitutional values.


Naz Foundation, the main petitioner in addition to the central government, along with Lawyers Collective, the legal NGO associated with the decade-long struggle to decriminalise section 377, issued a joint statement on Tuesday after their petition to review the SC verdict was dismissed. ‘In undoing the fruits of freedom and equality that were hitherto enjoyed by the LGBT persons in post-2009 period, by recriminalising them and in refusing to rectify the same, the Supreme Court has done a great disservice to its own jurisprudence in upholding the rights and dignity of the marginalised populations in India, including the LGBT community,’ the statement said.
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