Naz Foundation withdraws curative petition against 2013 SC verdict

Supreme Court: The Bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J allowed the NGO Naz Foundation to withdraw its curative plea challenging the 2013 Supreme Court verdict that had again criminalised gay sex between two consenting adults. The Foundation had told the Court that the curative plea has now become infructuous in view of the five-judge constitution bench verdict in 2018 which had set aside the 2013 judgement.

After the 2013 verdict, the Supreme Court had dismissed the review plea that had laid the foundation to file the curative petition. However, a five-judge constitution bench headed by then Chief Justice Dipak Misra entertained fresh petitions seeking decriminalising of the consensual gay sex. It had on September 6 last year unanimously struck down part of the British-era law and held that Section 377 of the Indian Penal Code that criminalised consensual gay sex was “irrational, indefensible and manifestly arbitrary”. The bench said:

One defines oneself. That is the glorious form of individuality.”

Drawing an analogy, the Court had held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail.

(With inputs from PTI)

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