NAZ curative listed for February 2; Will the Supreme Court reverse its S.377 ruling? (Read petition)

Just under two years ago, a Supreme Court bench led by the then Chief Justice of India P Sathasivam, decided to “consider” the request of an open court hearing of the Naz Foundation curative. This “request” is now listed before the Supreme Court of India this Tuesday..If Chief Justice TS Thakur, who will hear the curative along with two Dave and Khehar JJ, does allow for an open-court hearing, it will be one more step in a journey that spans more than fifteen years..Back in 2009, the Delhi High Court had struck down Section 377 of the Indian Penal Code. Delhi’s then Chief Justice, AP Shah, and Muralidhar J. held that criminalizing consensual homosexual acts between adults was in violation of the Constitution of India..The Delhi High Court’s decision was subsequently challenged, not by the Union of India, but by several parties who claimed to have been affected by the High Court’s decision. .Two years after the Supreme Court took up the matter, Singhvi GS and Mukhopadhaya JJ reversed the High Court’s decision. In the 98-page judgment delivered on December 11, 2013 the court held that, .“Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”.It was a decision that provoked a sharp response. Senior Advocate Anand Grover, who appeared on behalf of Naz Foundation, minced no words while expressing his displeasure the verdict..“This is one of the saddest days for me. This is a judgment based on wholly unsustainable reasoning considering the jurisprudence of the Indian Supreme Court..Others, shared a different point of view..V Giri, a former judge of the Kerala High Court, argued on behalf of the Apostolic Churches Alliance and Utkal Christian Foundation. In an interview with Bar & Bench, he said that the responsibility to amend S.377 rested with the Indian legislature..“The Legislature should now intervene and bring in more clarity as to what is the “order of nature.” Maybe they have to seriously think about whether Section 377 should be kept in the statute book or whether it should undergo drastic amendment. But it is a tough call.”.Matters did not end there..On December 20, Naz Foundation as well as the Union of India filed a review petition, arguing that S.377 was in fact, a of “reflection of outdated sodomy laws”. This review petition was dismissed by then a Division Bench of HL Dattu and SJ Mukhopadhaya after being heard in chambers...The dismissal was not altogether unexpected, with Grover admitting as much in an interview given two days after the Supreme Court verdict was delivered. .“We will file a review and we will also look at filing a curative petition. These are the two options and the third option is writ petition in a case but that won’t set aside the judgment….We don’t have much hope [of the review petition] succeeding but we will try.”.In April of 2014, the curative petition was filed by Naz Foundation. The foundation had rested, amongst other things, on an amendment made to Section 375 of the IPC in 2013. It was argued that the court had failed to take note of this amendment. (Read the curative petition here).Another “patent error” committed by the apex court was that,.This Hon‟ble Court has incorrectly held that a minuscule fraction of population cannot claim fundamental rights, thereby rendering the Part III of the Constitution meaningless for all individuals and minority communities in India. This finding has caused immense public injury and if not rectified, would have dangerous implications on the enforcement of fundamental rights of citizens.”.It is now up to the Supreme Court to decide whether the curative shall be allowed..Here is a timeline of the case:.2001: Naz Foundation, an NGO, files a petition in the Delhi High Court challenging the constitutional validity of Section 377 of the IPC..2003: The Government of India files an affidavit in the HC defending Section 377 on the ground that the Indian society disapproves of homosexuality..September 2, 2004: A Division Bench of the HC comprising of Chief Justice BC Patel and Justice BD Ahmed dismisses the petition on the ground that “there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation.”.2006: Decision of the HC challenged in the Supreme Court by the petitioner..February 2, 2006: A Division Bench comprising of Justices YK Sabharwal and PP Naolekar of the Supreme Court directs that “the matter requires consideration and is not of a nature which could have been dismissed on the ground as was done by the High Court”; the order of dismissal by the HC set aside and the matter remanded back to the HC..July 2, 2009: A Division Bench of the HC comprising of the then Chief Justice AP Shah and Justice S Muralidhar declares Section 377 as unconstitutional. It holds the following:.“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.”.July 7, 2009: Suresh Kumar Koushal files a Special Leave Petition (SLP) in the Supreme Court challenging the HC verdict..2009 – 2011: Fifteen other SLPs filed challenging the judgment of the HC as well as Intervention petitions filed by those supporting the HC verdict, are placed before the Supreme Court.February 13, 2012 – March 27, 2012: Hearings before the Division Bench of the Supreme Court comprising of Justices GS Singhvi and SJ Mukhopadhaya.March 27, 2012: Matter reserved for judgment by the Supreme Court..December 11, 2013: Division Bench reverses Delhi High Court judgement..January 2014: Supreme Court dismisses review petition.April 2014: NAZ Foundation mentions curative petition before Supreme Court..February 2, 2016: Curative Petition (88-102/2014) listed before Supreme Court.(Click here for a comprehensive listing of all Bar & Bench reports on Naz Foundation)