From The Indian Express, Sat 21 December 2013

Curious Case

Utkarsh Anand : New Delhi, Sat Dec 21 2013

In its appeal filed on Friday, the government said, “Section 377 IPC, insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.” PTI

In a curious submission, the government on Friday described its own law criminalising gay sex as “unlawful” and “unconstitutional”, and sought a review of the Supreme Court ruling that confirmed the legality of IPC Section 377.

Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal” is punishable with imprisonment from 10 years to life. In an order passed on December 11, the Supreme Court said gay sex was an offence “irrespective of age and consent”.

In its appeal filed on Friday, the government said, “Section 377 IPC, insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.”

It emphasised that the section reflected sodomy laws of the UK that have now lost legal sanctity, and were also “unlawful in view of the Constitutional mandate of Articles 14, 15 and 21 of the Constitution”.

Article 14 guarantees equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.

Seeking a hearing in open court, the government demanded a review of the December 11 judgment in order “to avoid grave miscarriage of justice” to thousands of lesbians, gays, bisexuals and transgenders (LGBT), who have been put at the risk of prosecution and harassment following the “re-criminalisation” of their sexual identities.

It said criminalising sexual expressions “strikes at the root of the dignity and self-worth” of the LGBT community, thousands of whose members had come out following the 2009 judgment of the Delhi High Court — but who had suddenly become “vulnerable to abuse and discrimination and require(d) immediate relief”.

On December 11, a Supreme Court bench led by Justice G S Singhvi held that Section 377 did “not suffer from any constitutional infirmity”, and that it was for Parliament “to consider the desirability and propriety of deleting (it) from the statute book or amend it”.

The ruling overturned the historic judgment delivered by the Delhi High Court, which had decriminalised gay sex, holding that Sec 377 violated the constitutionally guaranteed principles of equality and non-discrimination.

The review petition, drafted by advocates Devadatt Kamat and Anoopam N Prasad, has repeatedly reminded the court that nothing prevented it from striking down Sec 377, indicating the government’s uncertainty about being able to muster the numbers needed to change the law in Parliament.

It has recalled instances where the court has acted without waiting for Parliament, and asked why such a course was not adopted in this case despite the government having decided not to challenge the high court judgment. It has also said that there was no reason for the Supreme Court to presume the constitutionality of Sec 377, because the government, on whom lies the onus of defending the law, had chosen not to do so.

“Whether a law is Constitutional or not is certainly not dependent upon whether the legislature has thought it fit to retain a provision in the statute or not. It depends on whether that provision in effect violates the provisions of the Constitution,” it has said.

The government has argued that the apex court’s conclusion that it is not empowered to strike down a law merely because the perception of society has changed, was erroneous. “Law does not operate in a vacuum but in a social context,” the petition has said, adding that laws on homosexuality have been changed across the world.

The petition has argued that criminalisation of gay sex impedes access to health services and makes it difficult for the state to reach out to the community, which is driven underground for fear of the law.

On the Supreme Court’s observation that a “minuscule fraction of the country’s population constitute LGBT”, the government has argued that the number of affected people is irrelevant for deciding a matter of constitutionality.

GROUNDS OF APPEAL

SEC 377 is “unlawful” and “unconstitutional”, and “insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution”. It violates Articles 14, 15 and 21.

CRIMINALISING LGBT sexual identities “strikes at the root of the dignity and self-worth” of the community, and makes them “vulnerable to abuse and discrimination”.

NOTHING prevents court from striking down Sec 377; it has junked laws earlier, and “whether a law is constitutional or not is not dependent upon whether the legislature has thought it fit to retain a provision in the statute”.

MAKING gay sex criminal drives the community underground and impedes its access to health services. The numbers of LGBT are irrelevant for deciding a matter of constitutionality.