Centre files review petition in SC on homosexuality verdict

Government today moved the Supreme Court with a review petition seeking re-examination of its verdict on Section 377 of IPC, reviving the penal provision making gay sex an offence punishable with life imprisonment.

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 G E 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 G S Singhvi (since retired) and Justice S J 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.

The review petition filed by Ministry of Home Affairs said Section 377 of the IPC, insofar as it criminalizes consensual sexual acts in private, falls foul on the principles of equality and liberty enshrined in the Constitution.
"It is further submitted that Section 377 which criminalizes intercourse 'against the order of nature' is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860.
"They do not have any legal sanctity and in any case are unlawful in view of the constitutional mandate of Articles 14, 15 and 21 of the Constitution," the petition said, adding this court has held that "a statute which was justified when enacted could, with the passage of time, become arbitrary and unreasonable."
Further, the Centre contended that the apex court arrived at various conclusions which are contrary to well-established canons of law as laid down by this court.
"The Union of India, in the present review, will deal with each such conclusion to show errors apparent on the face of the record, being wholly contrary to well-established canons of law," it said.
While assailing the verdict, that came under attack as being "medieval and regressive," the review petition said the submissions of the Centre made during the hearing of the appeal that the high court's judgement did not suffer from any legal infirmity were not at all considered by the apex court.
"The Union of India, through Ministry of Home, had taken a categorical stand at the time of hearing of the appeal before this court that there was no legal error in the judgement of the High Court dated July 2, 2009, and, therefore, no appeal was filed by the Union of India against the said judgement," the review petition said.

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 the 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, the 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 petition said the apex court judgement has put LGBT persons at a risk of prosecution and harassment by re-criminalisation of their sexual identities.

"Following the High Court judgement that decriminalized 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," it said.

The Centre also raised the technical flaws in the verdict saying it had not pleaded that the provision of Section 377 is constitutional.

"In the present case, the judges, without at all adverting to the arguments, submissions and compendium of materials which were placed before them to show how the provision of Section 377 ipso facto violates the provisions of Article 14, 15 and 21 of the Constitution, applied the principle of presumption of constitutionality in favour of Section 377," the petition said.

The Centre also questioned the apex court's judgement putting the onus on Parliament for deciding the issue of repealing section 377 of the IPC saying the 1860 law was passed by the legislative council consisting of Englishmen and is not the will of Indian Parliament.

"The fact that Parliament is the representative body of the people of India cannot be a factor when considering Section 377. As observed by the judges themselves, the IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on October 6, 1860.

"It is submitted that the Council consisted of Englishmen. Therefore, it cannot be said Section 377 represented the will of Indian Parliament," the petition said.

"Therefore, the conclusion of this court that it is not empowered to strike down a law merely because perception of society has changed is patently erroneous. Law does not operate in a vacuum but in a social context," it notes.

The petition states that there has been a sea-change, not just in India, but all over the world, with respect to the law on homosexuality, also noting that a majority of countries across the world have legalised 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 colonisers. Indian society prior to the enactment of the IPC had a much greater tolerance towards homosexuality," it said.