SC pulls up Centre for failing to appeal in gay sex row

"This court is meant for deciding important questions of Constitution and Fundamental Rights. You do not file appeals on such important issues. You did not file the appeal against the Delhi High Court verdict on the gay sex. But you come on petty issues," Justice A K Patnaik, speaking for a bench, observed.

The bench, also comprising Justice Markandeya Katju, made the observation while dismissing the appeal filed by the Union of India, challenging a direction for increment to a railway employee R Burdee.

"Is this the way the Union of India behaves? What's your problem if a retired employee is directed an increment. Should you come to the Supreme Court for such purpose? On an important issue like the gay sex you did not file an appeal.

"People should change. The authorities must change. This is not the way the Union Government should behave," the bench told Additional Solicitor General P P Malhotra.

On July 2, 2009, the Delhi High Court had declared Section 377 of the Indian Penal Code insofar as it criminalises consensual sexual acts of adults in private as violative of Articles 14, 21 and 15 of the Constitution.

Though scores of organisations and individuals had filed appeals against the High Court judgement, the Centre took a contrary stand in the apex court that it was not opposing the verdict.

The Centre's stand in the apex court was contrary to the strong opposition it had voiced in the High Court against de-criminalisation of gay sex on the ground that it would not only erode the country's cultural values but also lead to HIV and other sexually transmitted diseases.

In the instant case R Burdee, an accountant working with the Indian Railways retired on December 31, 1989. Thirteen years thereafter, he moved the CAT seeking enhanced pension on the plea that he was denied one annual increment.

The Railways, however, took the stance that had Burdee retired on January 1, 1990 (a day after) he would have been eligible for increment and quoted the relevant rules.
However, the CAT and the Madras High Court subsequently dismissed the Centre's argument and directed that he be notionally granted incremental benefit; aggrieved by which the government appealed in the apex court.

"If a poor retired man is seeking one increment why are you so much determined to deny him. Should you come to the Supreme Court for this?" the bench remarked while dismissing the Centre's appeal.