Naz Foundation files Curative Petition in SC

Some transgenders symbolize using the yin and yang symbol.

Naz Foundation- an NGO fighting for rights of the LGBT Community has filed a curative petition in the SC challenging the court’s verdict that upheld the constitutional validity of Section 377. Some of the grounds raised in this petition are quite novel and interesting. I will discuss them here.

1. Effect of the amendment to Section 375 of the IPC in 2013 on Section 377- According to the petitioners, “subsequent to the Criminal Law (Amendment), Act, 2013, Section 375 makes penile non-vaginal sexual acts, between man and woman, without consent an offence. By necessary implication, such sexual acts between man and woman, which are consensual, are no longer prohibited.”

Now, saying that since only penile non-vaginal sexual acts (man and woman) without consent have been included within the ambit of Section 375, the sexual acts between man and woman which are consensual are no longer prohibited, sounds like jumping to conclusions without looking at the whole scheme of things in this regard.

I agree that under Section 375, consensual penile non-vaginal sexual act is not an offence. But, under Section 377, it still remains an offence. It is not rape but it is still unnatural sex under Section 377. We must read harmoniously. By drawing conclusions from one section to make the other section of the same statute redundant does not seem correct to me.

Also, Section 377 does not make the new Section 375 obsolete. Both the sections have their separate sphere of influence. Section 375 is concerned with cases where there is no consent. Whereas, Section 377 applies in cases where there is consent.

2. The Petitioners contend that “The impugned judgment requires persons to establish that they are more than a miniscule fraction of the country’s population in order to enforce their fundamental rights, which is contrary to the settled jurisprudence of this Hon’ble Court on the protection and expansion of fundamental rights.”

The Supreme Court in its earlier judgment said that:

“While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

According to the Petitioners, “this finding is completely erroneous and is devoid of any factual basis. Furthermore, it goes against the grain of this Hon‟ble Court‟s jurisprudence on expansion of fundamental rights. If parties approaching this Hon‟ble Court under Article 32 or a High Court under Article 226 are required show a strength of numbers in order to claim his/her fundamental rights, then it has dangerous implications on the administration of justice by putting the constitutionally guaranteed rights of every person in peril.”

This point has some merit. Whether it is one person or thousands of persons, fundamental rights are same for everyone. Even if a single person’s rights are being affected, he can approach either the High Court or the Supreme Court. I partly agree with this contention of the petitioners. However, this was not the chief basis on which the Supreme Court reversed the findings of the High Court.

3. The impugned judgment reflects issue bias against the LGBT community and has resulted in manifest injustice

The petitioners have targeted the observations made by the Supreme Court in its earlier judgment such as the court referring referring to the LGBT community in terms of “the so-called rights of LGBT persons” in paragraph 51 of the impugned judgment or viewing them as “miniscule fraction of the country‟s population” in paragraph 43.

I think it is wholly incorrect to say that there is issue bias against the LGBT Community. Had there been issue bias, the court would not have cared to give a close to 100 pages judgment and discuss most of the issues at length. The court did skip some of the issues raised by the petitioners that it thought to be irrelevant. I do not think there is any merit in this argument.

It is a fact that they are a tiny proportion of the country’s population. But, just because the court mentioned this fact does not reflect any form of issue bias against the LGBT community. In fact, the court in its ending remarks clearly mentioned that the Parliament is free to make or amend the law in this regard.

4. Another interesting ground raised by the petitioners is that “the Hon’ble Court has failed to consider whether Section 377 violates Article 15, as argued by the Curative Petitioner and as held by the High Court that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.”

Now, I am really curious about this issue. Whether sexual orientation is analogous to sex and whether it could be included within the ambit of article 15 are some questions that I am looking forward to be answered by the court.

Many more issues have been raised in this case. I have mentioned some of them that I found to be remarkable.