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At 3pm today, will Thakur, Dave, Khehar do the highly unlikely and creatively reconsider section 377?

Chief Justice of India (CJI) TS Thakur, and justices Anil R Dave and Jagdish Singh Khehar, will hear the section 377 curative petition today at 3pm in the Supreme Court.

The Supreme Court had upheld the Indian Penal Code provision criminalising homosexual intercourse in December 2013, and had rejected a review petition in January 2014.

Today’s curative petition by the Naz Foundation - which was the petitioner NGO behind the initial 2009 victory in the Delhi high court that struck down the law - will be held in open court and seeks to cure a “gross miscarriage of justice”, according to its petition.

Fact is, that curative petitions generally have a chance of survival close to a snowflake in hell - only three have ever been successful and the legal grounds of challenge are very limited.

Furthermore, as one of the three most senior judges currently in the apex court, Dave has not yet shown any indication of being at all sympathetic to the LGBT community. In September 2015, he allowed the Gujarat government very speedily to take a special leave petition (SLP) forward against a Gujarat high court decision to grant tax exemption to a film about gay sex.

Aw well.

However, CJI Thakur could just possibly turn out to be a wildcard and a surprise who has not been afraid to ruffle feathers in his short tenure so far.

I certainly wouldn’t put some judicial creativity today past him.

And particularly after a private member’s bill to take 377 off the books got shot down so badly in parliament with schoolboy jeers and hoots so that it wasn’t even discussed by MPs, maybe a judge could conceivably find reason to reconsider?

In upholding 377 because it was a law on the statute books, they had optimistically passed the parcel to parliament to legislate 377 away. But since that has failed spectacularly, maybe there is scope for a re-evaluation of the jurisprudence, since statute or no, 377 is pretty impossible to defend in this day and age on any human rights or other objective grounds.

Naz has several arguments in its curative petition, including that “the 2013 amendment to section 375, which deals with rape, had held consensual sex between an adult male and woman was not an offence”, which by implication should mean that 377’s ‘intercourse against the course of nature’, such as anal sex for instance, was no longer prohibited, reported the Indian Express:

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, it contended, adding that section 377 now effectively only criminalises all forms of penetrative sex, including, penile-anal sex and penile oral sex, which makes it ex facie discriminatory against homosexual men and transgender persons and thus violative of article 14 of the constitution.

It had said 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, and the court ought to have heard the parties on the effect of the amendments to section 375 on Section 377...

The impugned judgment, it 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.

We’ll keep our eyes peeled.

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