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Aw! Court not doing our job

Rahul Gandhi in New Delhi on Thursday. (PTI)

New Delhi, Dec. 12: Sonia Gandhi today became the first mainstream politician in India to speak up formally for gay rights — a statement that rang loud also because of the near-silence elsewhere in the usually raucous political spectrum.

Another feature stood out in the otherwise welcome statement: the political class was almost complaining that the judiciary is not “over-reaching” or “encroaching upon the domain of the legislature or the executive”.

On a day Sonia’s voice spread like wildfire through the Congress and found a matching echo in a host of leaders, including Rahul Gandhi, key ministers appeared to be tilting more towards legal options such as filing a curative petition rather than a risky legislative solution.

Sonia, too, stopped short of committing herself to a legislative amendment, which needs only a simple majority. “I hope that Parliament will address this issue,” she said. Congress sources later said Sonia had told the government to “take immediate corrective steps”.

“I am disappointed that the Supreme Court has reversed a previous Delhi High Court ruling on the issue of gay rights,” Sonia said in the formal statement a day after the Supreme Court re-criminalised gay sex.

The court had stressed in its judgment yesterday that it had “merely pronounced” on the constitutionality of Section 377 of the IPC, under which intercourse against the order of nature is an offence. It had added that the “competent legislature” (in this case, Parliament) is free to delete the law from the statute book.

This position has “disappointed” Sonia. But her government was more than disappointed when a bench, headed by the same judge, had cancelled 122 telecom licences and ruled that auctions were mandatory. Many, including some in the government, had felt then that the order amounted to setting policy, a function of the executive.

The decision by Justice G.S. Singhvi to confine himself to dissecting the constitutional minutiae of Section 377 stands out in an atmosphere where courts were accused of meddling in populist matters.

In the middle of carpet-bombing from television studios, few jurists in India were willing to discuss the newfound restraint of the Supreme Court. On Wednesday, The New York Times described the court’s decision to defer to the legislators as “a rare instance of judicial modesty”. (The newspaper also pointed out that “India’s judges have a long history of judicial activism that would be all but unimaginable in the United States”.)

Lost in the blizzard of public opinion is a theme that recurs in the Supreme Court judgment: in spite of a Law Commission recommendation in 2000 to delete Section 377, “the legislature has chosen not to amend the law or revisit it”.

The court added that “while this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import”.

Under normal circumstances, the spirit of this statement should have been embraced and held aloft as a robust sign of the respect the judiciary reserves for the legislature.

The acknowledgement that the will of the House acts as a guide should have been music to the ears of those griping about “judicial over-reach” and “encroachment” — phrases that drove the defence of the UPA government’s “policy paralysis”.

On September 5 this year, in a rare moment of consensus in the Rajya Sabha, BJP leader and lawyer Arun Jaitley had said: “Courts don’t legislate…. If the government is not doing its duty, please direct it to do its duty, but you cannot take over the power.”

Jaitley’s party is now struggling to fashion a response to the Supreme Court’s verdict, saying it will wait for an all-party meeting to express its opinion. The BJP’s mascot, Narendra Modi, has been keeping silent — unusual for a demagogue rarely at a loss for words.

But the Congress response was vocal and rapid. A few hours after Sonia Gandhi issued the statement, Rahul appeared before the media, echoing similar sentiments.

Rahul said: “I personally believe that these are matters of personal freedom. I think, I would agree more with the high court verdict. I think these matters should be left to the individuals. These are personal choices. This country is known for its freedom, freedom of expression. So let that be.”

It is probably the first time both Sonia and Rahul spoke up on an issue on the same day, though they did talk about the recent election losses together a few days ago.

Their statements came after senior ministers P. Chidambaram and Kapil Sibal had already clarified the stand of the party and the government.

Both Sibal and Chidambaram suggested that while parliamentary intervention was an option, they preferred a legal challenge to the apex court. “We need to take quick action, firm action,” law minister Sibal said. “In the 21st century, we cannot consider this criminal activity.”

Chidambaram contended in a television interview that a review petition or a curative petition — legal techniques to challenge a Supreme Court order before the apex court itself — could provide quicker salvation to the gay community than attempts to bring a law in a fractured Parliament.

The government is divided, too. While Chidambaram and Sibal have criticised the Supreme Court order, home minister Sushil Kumar Shinde has said the government will abide by it.

Although many Congress leaders hailed their decision to take a stand on a sensitive issue that is related to freedom of choice, some disapproved of the decision to send out statements by both Sonia and Rahul, wondering if this was the most important national issue.

Leaders of other parties also betrayed caution in taking the lead in accepting the legislative option suggested by the Supreme Court.

“If the government is serious, it can call an all-party meeting,” Sushma Swaraj, the leader of Opposition in the Lok Sabha, said, without committing to her party’s formal position on gay rights. Jaitley, her counterpart in the Rajya Sabha, suggested only minor changes in the law would suffice.

At the heart of the confusion is the contradiction between appearing, on the one hand, politically correct and responsive to an increasingly vocal section of the population, and the fear, on the other hand, of alienating deeply conservative support bases ahead of the 2014 Lok Sabha elections.

The government’s most probable course is to file a curative petition before the Supreme Court as there is no time left to draft an amendment to be passed in this session of Parliament.

A source said the government would support a petition by the Naz Foundation, the original petitioner in Delhi High Court, “rather than go by itself”.

Curative petitions are filed by aggrieved parties. Through a curative petition, an aggrieved person can get a reprieve against the final judgment of the apex court after the review petition is dismissed.

The Naz Foundation’s Anjali Gopalan said no communication had been received from the government yet but said the foundation would file a petition within a month.

A legislative response runs a risk in the House. Bills like the Lokpal bill, women’s reservation and insurance, in addition to several ordinances, are to be passed on a priority basis at a time this session is yet to have a single normal working day so far. The next session will be more or less a technical meeting for adopting vote-on-account before the general election.

Government officials said the drafting process need not be complex. A part of the objective can be achieved by changing one word, an official said.

Section 377 now states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished….”

The official said the word “voluntarily” could be replaced with “forcibly”, redefining the law. “But we will still need a provision against forced sodomy,” he said.

By late tonight, an ordinance route was among the options being talked about. Should the government summon courage to promulgate an ordinance, Rahul is likely to support it, unlike last time when his “nonsense” label sank such a measure aimed at shielding convicted legislators.

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