New Delhi: Naz Foundation on Tuesday filed a review petition against the Supreme Court judgment on Section 377. They are also seeking an interim stay of the order after it had set aside the Delhi High Court ruling that decriminalised homosexuality, saying gay sex is illegal.
Earlier, the Centre had already filed a review plea on the apex court order and expressed disappointment over the judgement.
Upholding Indian Penal Code Section 377 and setting aside the Delhi High Court ruling that decriminalised homosexuality, the Supreme Court had ruled gay sex as illegal. A bench of justices GS Singhvi and SJ Mukhopadhaya had held that there is no constitutional infirmity in Section 377 of IPC which makes gay sex an offence punishable with up to life imprisonment. However, the court said that the appropriate changes in Section 377 can be made through legislation and Parliament must take a decision on the controversial issue and that the judiciary has no role in it.
"Since 1950 the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law," the judgement said.
It had also further said that the ones "who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty."
Naz Foundation has released a press release on its move. Here is the fill text:
24th December, 2013: The Naz Foundation (India) Trust, the original petitioner in the constitutional challenge to Section 377, IPC, has filed a petition seeking review of the judgment of the Hon'ble Supreme Court in Suresh Kumar Koushal v. Naz Foundation (India) Trust (Civil Appeal No. 10972 of 2013). On 11th December, 2013, the Hon'ble Supreme Court, in a regressive decision, has upheld the validity of Section 377, IPC that criminalises all penile non-vaginal sexual acts between consenting adults and has set aside the judgment of Delhi High Court of 2009 that had decriminalized adult consensual sexual acts in private.
Represented by Lawyers Collective, the Petition argues that there are a number of grave and manifest errors of law and wrong application of law in the impugned judgment that need to be corrected under review by this Hon'ble Court. The judgment is contrary to the grain of Hon'ble Supreme Court's own jurisprudence on advancement of fundamental rights and freedoms of all persons, especially those who face marginalisation in society. It completely dismisses the foreign jurisprudence from all over the world and international human rights law on sexual orientation and gender identity. Reliance on the principles of judicial restraint and Parliament's prerogative to change laws is misplaced, when the law has been challenged for violation of fundamental rights of individuals, as is being done in the present case.
Seeking an interim stay on the operation of the judgment, the petition notes that it has caused immense prejudice to all adult persons who engage in consensual sex, particularly those from the Lesbian, Gay, Bisexual and Transgender community, who suddenly have been put at risk of prosecution under criminal law. In the last four years, many persons from the LGBT community have become open about their sexual identity and disclosed their intimate relationships on the basis of the High Court judgment decriminalising the same.
The Petition further states that since it raises significant issues of constitutional import of substantial public interest and far reaching public importance, an oral hearing ought to be given by the Hon'ble Supreme Court.
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