Centre files review petition in Supreme Court against its verdict on same sex, reversing Delhi High Court Judgement

Equality became a fabled tale for homosexuals when the apex court’s judgment of holding consensual homosexual intercourse as a penal offence was proclaimed.  But government heard their cry from streets of the Indian cities, which marched for the cause of the Naaz Foundation.

“We are all here today, all the minority, as well as the mainstream population. Everyone has joined hands to stand for human rights and to stand against Section 377, which is against human rights in all respects,” said a protester, Shalini Bhattacharya.

The Centre on Friday moved the Supreme Court with a review petition of its verdict on Section 377 of IPC, reviving the penal provision making gay sex an offence punishable with life imprisonment.

Confirmation was derived after the Union Law Minister Kapil Sibal tweeted on Friday, “The Govt has filed the review petition on 377 in the Supreme Court today”.

While overruling the July 2, 2009, verdict of the Delhi High Court, the apex court had held that Section 377 (unnatural sexual offences) of the IPC does not suffer from unconstitutionality and that the declaration made by the High Court is legally unsustainable.

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.”

The Centre’s petition settled by Attorney-General G.E. Vahavati sought that oral arguments are heard in an open court before disposing of its review petition. The judgment is contrary to well established canons of law as laid down by the court, and termed the verdict ‘medieval and regressive’. It falls foul on the principles of equality and liberty held in the Constitution.

The review petition filed by Ministry of Home Affairs said that Section 377 which criminalises intercourse ‘against the order of nature’ is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860.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.”

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. While law-making was the sole responsibility of Parliament, it was the task of this court to judge the constitutional validity of laws, stated the petition

The Centre also questioned the locus standi of the third parties on whose appeal the apex court had passed its verdict.

“Non-amendment of law by Parliament, especially a pre-constitutional law, is not a limitation on the power of judicial review.”

“It is the bounden duty of this court, as the protector and guarantor of fundamental rights of people, to strike down any law that violates the fundamental rights.”

“It is submitted that the judgment suffers from glaring legal errors and seeks to invoke certain legal principles which were inapplicable in the facts of the present case,” the petition said.

Further, the Centre contended that the apex court ignored the affidavits filed by the Ministry of Health and Family Welfare in 2006 in the Delhi High Court and in 2012 in the apex court.

In the said affidavits it was clearly noted that the fear of legal harassment had driven the MSM (Men having Sex with Men) community underground and away from essential health services, resulting in risky sexual practices and increased vulnerability to HIV.

“This clearly showed that the petitioner believed that Section 377 acted as an impediment to public health interventions,” the petition said, adding that the present review petition has been filed to “avoid grave miscarriage of justice to thousands of LGBT persons”.