NGO Naz Foundation has moved the Supreme Court seeking to cure "gross miscarriage of justice" in its judgment upholding the validity of section 377 of the Indian Penal Code that criminalises gay sex.
A bench, headed by Chief Justice P.Sathasivam, said that it would consider the NGO's Naz Foundation's plea to hold the hearing of the curative petition - the final method of seeking correction of judicial error - in open court.
The court said this after senior counsel Anand Grover mentioned the filing of the curative petition by Naz Foundation.
Naz Foundation has contended that 2013 amendment to section 375, dealing with cases of rape, of the IPC said that the consensual sex between adult male and woman was not an offence, and its curative petition said that by 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 Naz Foundation contended.
The petition contended that section 377 IPC now effectively only criminalises all forms of penetrative sex between men including penile-anal sex and penileoral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of article 14 of the constitution.
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Noting that the amendments to section 375 were carried out after the judgment in the gay sex case was reserved and the parties did not have a chance to address the court on the issue, it said that the court ought to have heard the parties on the effect of the amendments to section 375 on section 377.
The curative petition said that the court had erred in upholding the classification between carnal intercourse in the ordinary course of nature and against the order of nature under section 377, without recording a finding on the latter as well as whether there is a rational nexus with the object of legislation on this count.
The impugned judgment, the curative petition said, "reflects an issue bias against the LGBT persons, as evident from such observations like 'the so-called rights of LGBT persons' and 'miniscule fraction of the country's population' which vitiates the judgment and renders it a nullity".
The apex court by its order of Dec 12, 2013 and subsequently in the review petition on Jan 28 this year, upheld the validity of section 377 and found no constitutional infirmity in the penal provision that criminalises homosexuality.
The apex court had set aside the Delhi High Court verdict of July 2, 2009, striking down section 377.