Desai, Salve, Rohatgi, Grover battle for Naz Foundation’s curative petition; SC agrees to “consider” request for open hearing

NGO Naz Foundation has filed a curative petition challenging the Supreme Court judgment upholding the Constitutional validity of Section 377 of the Indian Penal Code (IPC). (Read Story: Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors).Mentioning the matter today before a three judge bench comprising Chief Justice P Sathasivam and Justices Ranjan Gogoi and NV Ramana, Senior Advocates Ashok Desai, Anand Grover, Harish Salve and Mukul Rohatgi sought for an open court hearing of the matter. The court agreed to consider the request..The Petitioner has relied upon the amendment made to Section 375 of the IPC in 2013 to make out its case in the curative petition. Contending that the Court failed to notice the effect of amendment of Section 375 on Section 377, the petitioner has submitted that,.“Prior to the amendments penile non vaginal sex including anal sex and oral sex both between man and woman and man and man was prohibited under Section 377. After the amendments in 2013, Section 375 has been broadened to include penile non vaginal sexual acts between man and woman without consent an offence. By implication such sexual acts between man and woman which are consensual are not criminalised..Consequently, these sexual acts between man and woman have been taken out of the ambit of Section 377, otherwise the amended Section 375 would be rendered redundant. Presently, Section 377 effectively only criminalises all forms of penetrative sex…. between man and man thereby being ex facie discriminatory against homosexual men and transgender persons and thus violative of Article 14.”.A Division Bench of the Supreme Court had on December 11, 2013 declared Section 377 of the IPC as Constitutionally valid while setting aside a 2009 judgment of the Delhi High Court. While doing so, the Court had heavily relied on the argument by the appellants that Section 377 does not discriminate against any particular class of persons but only criminalises certain sexual acts irrespective of whether such acts are between man and man or man and woman. This reasoning has been strongly assailed in the current curative petition by placing reliance on the amendments made to Section 375 in 2013..A review petition filed by the Central government had also been dismissed by the Supreme Court in January 2014..Read the full petition below.