New Delhi: The government filed a petition in the Supreme Court on Friday, seeking a review of its judgement that upheld a 153-year-old law criminalizing consensual sex between adult homosexual men, saying the British-era law had been “imposed upon Indian society due to the moral values of the colonizers”.
There has been a “sea change” across the world in attitudes toward homosexuality, the government told the nation’s highest court of law.
“Section 377, by proscribing certain sexual acts between consenting adults in private, demeans and degrades the dignity of all individuals, irrespective of their sexual orientation,” said the petition.
It asked for the review to be conducted after the court hears oral arguments—a departure from the usual practice of reviews being carried out in judicial chambers.
The Supreme Court on 11 December overturned a Delhi high court verdict that had set aside Section 377 of the Indian Penal Code (IPC) and decriminalized consensual sex between adult homosexual men. The high court had declared the provision “unconstitutional” to the extent that it criminalized consensual sexual activity between homosexual adults.
“The government has filed the review petition on 377 in the Supreme Court today,” Union law minister Kapil Sibal said on the microblogging site Twitter. “Let’s hope the right to personal choices is preserved.”
The government’s petition, a copy of which was reviewed by Mint, questioned the Supreme Court’s silence on whether Section 377 is vague, arbitrary and hence violative of the Right to Equality, as well as its failure to decide on whether it violates the Right to Privacy.
The petition questioned the apex court’s failure to dwell on the argument that Section 377 “seeks to criminalize consensual sexual activity of two adults, which was against the constitutional ethos of equality and liberty”.
Another point left out by the court was on the high court’s observation that the provision violates the constitutional bar on discrimination based on a person’s gender.
The Supreme Court had delivered its ruling after the high court judgement was challenged on grounds of public morality by groups of religious bodies and individuals,
including the All India Muslim Personal Law Board, the
Apostolic Churches Alliance and the Krantikari Manuwadi Morcha.
The petition notes that the “judgment was challenged mostly by third parties” and given that it is the state’s prerogative to defend the constitutionality of statutes, the court ought to have dismissed their petitions for lack of admissibility.
Countering the court’s distressing observation that only a “minuscule fraction” of the population constitutes the LGBT (lesbian, gay, bisexual and transgender) community, the petition says that the constitutional “infraction” and not the extent of violation must be considered.
The apex court had ruled that it did not have the power to strike down a law because of its disuse or change in societal perception. Challenging this view, the petition says that interpretation on adjudication must be “in the light of changing social values”.
“Law does not operate in a vacuum but in a social context. There has been a sea change, not just in India, but all over the world, with respect to the law on homosexuality. It is submitted that a majority of the countries across the world have legalized homosexuality.
“Even in India, Section 377 was introduced not as a reflection of existing Indian values and traditions, but rather, it was imposed upon Indian society due to the moral values of the colonizers. Indian society prior to the enactment of the IPC had a much greater tolerance towards homosexuality,” it says.
Pointing to what it called errors in the verdict, the petition said the Supreme Court’s caution that “self-restraint” must be exercised by courts prior to striking down laws does not hold, given that the court is “duty-bound to strike down” an unconstitutional provision or a restriction that violates a fundamental right.
Lawyers representing the LGBT community, who did not want to be named, said that review petitions will be filed by all the parties in the case.
The Supreme Court verdict had also said that the provision is constitutional and that the Delhi high court had been wrong in declaring it unconstitutional.
The petition responded that the Supreme Court, “without at all adverting to the arguments, submissions and...materials” that showed how Section 377 violates the provisions of Articles 14, 15 and 21 of the Constitution, had applied the principle of presumption of constitutionality in favour of Section 377.
As to the Supreme Court’s verdict that Parliament's failure to amend the law showed its disinclination on the issue, the government said the approach was “misconceived”.
“It is the task of this Hon’ble Court to judge the constitutional validity of laws,” it added.
Pointing out that the high court decision had allowed many LGBT people to be open about their sexuality, the petition says the Supreme Court decision has now put them at risk of prosecution and harassment.
Activists welcomed the Union government’s review petition.
“It is absolutely essential that a correction is done. Since the court passed the order, the correction should also come from the court. There are several issues in it which must be clarified. These are urgent issues for the community and all stakeholders,” said Akhila Sivadas of the Centre for Advocacy and Research, a public interest group.
The Bharatiya Janata Party (BJP), which has supported the Supreme Court’s order, noted that the government hadn’t opted for the legislative route to undo the verdict, nor had it called an all-party meeting to discuss the issue.
“The review petition will take a long time in court and the government is only shifting its responsibility. Leaders of the Congress party had also talked about bringing an ordinance, but the government chose not to take that route either,” said Meenakshi Lekhi, a BJP spokesperson and a Supreme Court lawyer.
Gyan Verma and Anuja contributed to this story.