Divergent stands led SC to refer Section 377 to Parliament

Even though the government on Thursday indicated “immedia­te” steps to overturn the ruling on gay sex rights, divergent stands taken by different ministries have been responsible for the Supreme Court’s verdict which left it for Parliament to delete the penal provision of law.

Additional Solicitor General P P Malhotra, appearing for the Union Home Ministry, had on February 23, last year opposed the Delhi High Court’s July, 2009 decision, decriminalising homosexual acts among consenting adults.

He said gay sex was “against social order and public morality” and the Indian society would not follow the practices prevailing in foreign countries.

“Gay sex is highly immoral and against social order and there is high chance of spreading of diseases (like Aids) through such acts,” he said. The home ministry, however, had came out with a press release, saying it has not taken any stand on the Delhi High Court order decriminalising homosexuality.

Additional Solicitor General Mohan Jain, representing the Union Health Ministry, however, had submitted that as per the government decision there was no legal error in the high court verdict.

No basis for HC

Taking on record Malhotra’s submission, a bench of Justices G S Singhvi (since retired) and S J Mukhopadhya said, “He emphasized that even after 60 years of independence, Parliament has not thought it proper to delete or amend Section 377 IPC and there is no warrant for the High Court to have declared the provision as ultra vires Articles 14, 15 and 21 of the Constitution.”

In his submission, Attorney General G E Vahanvati, appearing as amicus curiae, pointed out that the Group of Ministers constituted for looking into the issue relating to constitutionality of Section 377 IPC recommended that there was no error in the HC’s order, but the Supreme Court may take final view.

Changing social values

He also requested the court to take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century, which led to inclusion of Section 377 in the Indian Penal Code.

The offence carries life term as maximum penalty.

All these different views might have prompted the apex court to leave the matter to the wisdom of Parliament.

“Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General,” the apex court had said on Wednesday.

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