As the Supreme Court is set to hear a curative petition on Tuesday seeking to quash the apex court's December 2013 judgement upholding the validity of section 377, the petitioner remains hopeful.
Anand Grover of Naz Foundation said, “I am very hopeful that’s why we filed the petition.”
“But nothing changes as far as we are concerned, if the decision is the other way,” added Grover who said he will decide about his next step only after Tuesday.
It was only two years ago in the Suresh Kumar Koushal versus Naz Foundation case, that the apex court had reversed a Delhi High Court judgement which repealed Section 377 of the Indian Penal Code.
“I am very hopeful that the top court will give a positive direction towards amendment of Section 377, otherwise where do we go?” said Sunil Gupta, another Delhi-based LGBT rights activist.
He said if the court gives a decision in favour of the LGBT community; it will be the first step in their fight towards achieving the fundamental rights of liberty, equality and dignity.
Lawrence Liang, a legal expert based in Bangalore however, said, “one should not be overly optimistic about it nor “should one lose hope”.
Citing curative petitions to be a relatively new ‘innovation’ in the Indian legal system, Liang feels “this is the only mechanism left for the activists as far as the legal system is concerned”.
An article in Scroll says that only three curative petitions till date have been successful in getting the final judgement of the Supreme Court overturned.
In 2013, while overturning the Delhi High Court’s reading of Section 377, the Supreme Court had said, “It was the Parliament’s job and not that of the judiciary, to decide the issue”.
On this, Liang said, “It is like being handed an important historic opportunity and you refuse to play ball and pass it to an institution that you know won’t play ball.”
“Historically, all around the world it is not the legislature but the courts which have taken the lead on matters concerning the rights of sexual minorities. The reason for this is very simple. Parliaments by their political nature are a popular representative institution. Courts on the other hand are an anti-majoritarian authority, which do not have to adhere to popular opinion because they can do it on the principle of dignity, inclusiveness, diversity,” he added.
“If you were to imagine that the parliament had to pass a law for the rights of transgender people it will be the source of extreme ridicule,” he added.
Liang said, “In the April 2014 NALSA judgement on transgender rights, the court took a very different turn with a very inclusive and progressive judgement against the general view which was extremely biased.”