Centre files review petition in SC on homosexuality verdict

New Delhi: Government on Friday moved the Supreme Court seeking review of its verdict reviving Section 377 of IPC making gay sex an offence punishable with life term, saying 'recriminalisation' of sexual intercourse between same sex of consenting adults has put the LGBT persons at risk of prosecution and harassment. 

The Centre said the review petition has been filed to 'avoid grave miscarriage of justice to thousands of LGBT (Lesbians, Gays, Bisexuals and Transgenders) persons' who have been aggrieved by the apex court's December 11 judgement, contending it is 'unsustainable' as it "suffers from errors apparent on the face of the record". 

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'. 

The review petition contended that the December 11 verdict of the apex court setting aside the Delhi High Court's July 2, 2009 judgement decriminalising sexual intercourse between same sex of consenting adults, 'suffers from glaring legal errors and seeks to invoke certain legal principles which were inapplicable in the facts of the present case'. 

"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.

Centre submitted that the apex court has failed to consider the dynamic nature of the law, particularly with respect to homosexuality and putting the ball in Parliament's court to decide 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. 

"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. 

The Centre said that the apex court's conclusion 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 said, adding that there has been a sea-change, not just in India, but all over the world, with respect to the law on homosexuality. It contended that a majority of the countries across the world have legalized 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 colonizers. Indian society prior to the enactment of the IPC had a much greater tolerance towards homosexuality," it said. 

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

The affidavits had categorically stated that fear of harassment from law enforcement agencies has 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.

the petition said, "This clearly showed that the petitioner (Centre) believed that Section 377 acted as an impediment to public health interventions." 

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'. 

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.