The Centre's review petition, settled by its top law officer, attorney general G E Vahanvati, was unusually sharp in criticism of the December 11 judgment of Justices G S Singhvi and S J Mukhopadhaya when it said the apex court failed in its constitutional duty to protect the LGBT community's fundamental rights.
The review petition, which matched the 98-page judgment in length, was also refreshingly frank in expressing solidarity with the LGBT community when it said, "Section 377 criminalizes the only form of sexual expression, that is penile-oral or penile-anal sex, of homosexual men and transgender/hijra persons.
"The judgment strikes at the root of the dignity and self-worth of homosexual men and transgender/hijra persons. The Supreme Court has not addressed this issue at all, despite a clear finding from the Delhi High Court on the same." The Centre also sought an open court hearing on its review petition.
Petitions seeking review of a judgment are heard in chamber by the same bench which had pronounced the verdict without the presence of advocates. In an overwhelming majority of cases, review petitions are summarily rejected.
The Centre's strong arguments favouring decriminalization of same-sex relationships comes after Congress president Sonia Gandhi and party vice-president Rahul Gandhi criticized the SC ruling upholding the validity of Section 377.
Since Justice Singhvi, who authored the judgment, has retired, Chief Justice P Sathasivam will now nominate another judge to sit in chamber along with Justice Mukhopadhaya to consider merits of the Centre's argument for a reconsideration of the December 8 judgment.
However, there is little chance of the review petition being taken up at least for the next 12 days as the Supreme Court is closed for the winter break and will open after January 1.
The Centre's review petition, drafted by Devadatt Kamat and Anoopam N Prasad, was candid in admitting that successive governments and legislatures had lived with the archaic law now being viewed as draconian. They pointed to fundamental changes in societal dynamics that has forced majority of countries to decriminalize gay sex between consenting adults.
"Section 377, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution. Section 377, which criminalizes intercourse 'against the order of nature' is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860.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 (equality), 15 (non-discrimination) and 21 (right to life) of the Constitution," it said.
It also was critical of the apex court's view that Parliament, despite recommendations from the Law Commission, had not acted to either delete or limit the operation of Section 377 and also that courts were not empowered to strike down a law merely because society's perception had changed.
The Centre said, "Law does not operate in a vacuum but in a social context. There has been a sea change, not just in India, but all over the world, with respect to the law on homosexuality. It is submitted 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, but rather, it was imposed upon Indian society due to the moral values of the colonizers. Indian society prior to enactment of IPC had much greater tolerance towards homosexuality," it said.
It faulted the "miniscule minority" tag attached to the LGBT community by the SC while ruling that there was no clear data available to infer that they were prosecuted or persecuted. The Centre said, "The number of people affected is irrelevant when it comes to deciding an issue of constitutionality. The present review petition is being filed to avoid grave miscarriage of justice to thousands of LGBT persons who have been aggrieved by the judgment of the Supreme Court and have been put to risk of prosecution and harassment, upon re-criminalization of their sexual identities."
The Centre also wanted clarity given the apprehension expressed by the SC "whether consensual sexual acts between adults" would be viewed the way courts have historically taken note of non-consensual and coercive sexual acts against order of nature. "That was the precise issue before the court - whether consensual sexual acts should be criminalized," the Centre said.
Times View
This paper is glad that the government has shown a sense of urgency in appealing for a review of the SC's judgment criminalizing homosexuality. It may not have occurred to many people, including those who believe homosexuality to be "unnatural", that all forms of sex between even a man and a woman — except penile-vaginal — are deemed as criminal under Section 377. That includes oral sex. A strict application of the law may therefore render even some of our lawmakers criminal. The oft-repeated argument that "the law isn't enforced for such things" makes no sense. If it's not meant to be applied, then why is it in the statute books? Besides, what's the guarantee that some policeman somewhere won't use it to harass and blackmail? The only litmus test for criminality that needs to be applied here is: is it consensual or not? If it's consensual, then the State needs to get out of the way.
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