Sec 377: SC rejects plea against its order criminalising gay sex
In a major set back to gay rights activists, the Supreme Court on Tuesday declined to review its December 11 judgment holding that homosexuality or "unnatural sex" between two consenting adults was illegal and would be an offence. The court had held that this provision did not suffer from any constitutional infirmity. The Centre, Naz Foundation and several gay rights activists had filed petition seeking review of this judgment.
On Tuesday, a bench of Justices H.L. Dattu and S.J. Mukhopadhaya dismissed the review petitions observing that there are no grounds to interfere. In its review petition the Centre had assailed the December 11 judgment contending that law must reflect social change and the aspiration of the society and not operate on vacuum. The review petitions were dismissed in the chamber.
In view of the dismissal of review petitions the next option for the Centre and others is to file a curative petition, which will be heard by a minimum of four senior-most judges and a maximum of five judges.
The Centre said, “There has been a sea-change, not just in India, but all over the world, with respect to the law on homosexuality. A majority of the countries across the world have legalised homosexuality. Even in India, Section 377 IPC 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 said, “the apex court has failed to consider the dynamic nature of the law, particularly with respect to homosexuality. The view adopted by this Court is contrary to the principles enshrined in the law down i.e. that the Court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience.”
On the apex court indicting the Delhi High Court stating that it ought to have exercised self restraint while decriminalising Section 377 IPC, the Centre said “self restraint must be exercised and the court must be guided by the presumption of constitutionality if the provision directly transgresses or substantially and inevitably affects the fundamental right. Secondly, the presumption of constitutionality has no relevance when a violation of constitutional provisions has been demonstrated.”
Referring to the court’s observation that Parliament had failed to amend the Section 377, the Centre said “whether a law is Constitutional or not is certainly not dependent upon whether the legislature has thought it fit to retain a provision in the statute or not. It depends on whether that provision in effect violates the provisions of the Constitution.”
On the court’s finding that only a miniscule number of persons had been penalised so far, the Centre said “the number of people affected is irrelevant when it comes to deciding an issue of constitutionality. The present review petition is being filed to avoid grave miscarriage of justice to thousands of LGBT persons who have been aggrieved by the order of this Court and have been put at risk of prosecution and harassment, upon re-criminalisation of their sexual identities. Following the High Court judgment that decriminalised adult consensual sexual acts in private, including homosexual acts, a considerable number of LGBT persons had become open about their sexual orientation and identity in their families, workplaces, educational institutions and public spaces, amongst others. All those people suddenly have become vulnerable to abuse and discrimination and require immediate relief.” The Centre pleaded for review of the judgment.