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India: Gay sex verdict: Government files review petition in Supreme Court

Friday 20 December 2013, by siawi3

Last Updated: Friday, December 20, 2013, 16:06


Zee Media Bureau

New Delhi: The government on Friday filed a review petition against the Supreme Court’s decision to uphold Section 377 of the Indian Penal Code which criminalises homosexual relations between adults.

Confirming the move, Union Law Minister Kapil Sibal on Friday tweeted:

The review petition contended that the December 11 judgement of the apex court setting aside the Delhi High Court verdict decriminalising sexual intercourse between same sex of consenting adults is “unsustainable”.

The Centre’s petition settled by Attorney General GE Vahavati sought that oral arguments be heard in an open court before disposing of its review petition.

The review petitions are generally decided in chamber hearing.

In the petition filed through advocate Devdutt Kamath, the Centre has taken 76 grounds to contend that the judgement passed by Justice GS Singhvi (since retired) and Justice SJ Mukhopadhaya “suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by this court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.”

While setting aside the July 2, 2009 judgement of the Delhi High Court, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from the vice of unconstitutionality and that the declaration made by the High Court is legally unsustainable.

Overturning a 2009 Delhi High Court judgment decriminalising homosexuality, the Supreme Court on December 11 upheld Section 377 of the Indian Penal Code which classifies gay sex as a crime. However, the court left it to Parliament to amend the section if needed.

The petition said though the apex court’s verdict noted the submissions of the Attorney General, the same were not at all dealt with in the entire 98-page judgement.

“It is submitted that the petitioner (Centre) had found no legal error in the High Court decision and thus had accepted the correctness of the same (affidavit on behalf of Union of India through the Ministry of Home Affairs dated March 1, 2012).”

“Though Parliament is mandated with the task of enacting legislations, it is the Executive, i.e. the Government that defends the constitutionality of statutes in this court,” the petition said.

It further added, “This court could not have ignored the fact that the Union of India had made a considered decision not to challenge the High Court decision and had accepted the verdict that Section 377 was unconstitutional, in so far as it criminalised adult consensual sexual acts in private.”

The Centre also questioned the locus standi of the third parties on whose appeal the apex court had passed its verdict.

“The High Court judgement was challenged mostly by third parties, who were not party to the original writ petition in the High Court. This court ought to have dismissed the Special Leave Petitions at the admissibility stage itself, since it is the prerogative of the State to defend the constitutionality of statutes and not that of the third parties,” the petition said.

The Centre also questioned the apex court’s observation that “despite the decision of the Union of India not to challenge in appeal the order of the High Court, Parliament has not made any amendment in the law.”

“This approach is entirely misconceived. If a statute is declared unconstitutional, Parliament has no further role to play to add to or endorse a judicial declaration,” the petition said.

The Centre’s petition submitted that while law-making is the sole responsibility of Parliament, it is the task of this court to judge the constitutional validity of laws.

“Non-amendment of law by Parliament, especially a pre-constitutional law, is not a limitation on the power of judicial review.”

“It is the bounden duty of this court, as the protector and guarantor of fundamental rights of people, to strike down any law that violates the fundamental rights.”

“It is submitted that the judgement suffers from glaring legal errors and seeks to invoke certain legal principles which were inapplicable in the facts of the present case,” the petition said.

The Centre also questioned the apex court’s observation that the high court had overlooked a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans genders (LGBT) 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 of the IPC”.

“It is clear that the number of people affected is irrelevant when it comes to deciding an issue of constitutionality. This court, when arriving at this observation, did not take into account settled law on the subject,” it said.

Further, the Centre contended that the bench headed by Justice Singhvi completely ignored the affidavits filed by the Ministry of Health and Family Welfare in 2006 in the Delhi High Court and in 2012 in the apex court.

The affidavits had categorically stated that fear of harassment from law enforcement agencies has driven the MSM (Men having Sex with Men) community underground and away from essential health services, resulting in risky sexual practices and increased vulnerability to HIV.

“This clearly showed that the petitioner believed that Section 377 acted as an impediment to public health interventions,” the petition said, adding that the present review petition has been filed to “avoid grave miscarriage of justice to thousands of LGBT persons” who have been aggrieved by December 11 judgement.

The union government had expressed “deep disappointment” over the verdict and said it was considering all options to restore the Delhi High Court order.

The BJP backs the Supreme Court’s recent judgment.

(With Agency inputs)

First Published: Friday, December 20, 2013, 13:22