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Why blame the court? Look who is disappointed now

The statement issued by Sonia Gandhi on Thursday

I am disappointed that the Supreme Court has reversed a previous Delhi High Court ruling on the issue of gay rights.

The high court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution.

This Constitution has given us a great legacy, a legacy of liberalism and openness, that enjoins us to combat prejudice and discrimination of any kind. We are proud that our culture has always been an inclusive and tolerant one.

The Supreme Court also suggested another course. I hope that Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgment.

But the home ministry run by Sonia’s own party had argued for retaining Section 377 in the apex court. In the judgment delivered on Wednesday, Justice G.S. Singhvi said: “Shri P.P. Malhotra, learned additional solicitor-general, who appeared on behalf of the ministry of home affairs, referred to the affidavit filed before Delhi High Court wherein the ministry of home affairs had opposed decriminalisation of homosexuality and argued that in its 42nd Report, the Law Commission had recommended retention of Section 377 IPC because the societal disapproval thereof was very strong.”

The original case was filed in 2001, when the NDA was in power. The home ministry had submitted an affidavit in 2003, when the NDA was still in power, supporting the constitutional validity of Section 377.

In 2006, when UPA I was in power, the health ministry filed an affidavit saying Section 377 impedes the anti-HIV programme.

But in 2008, the government’s lawyer had defended Section 377 in the final arguments before Delhi High Court, according to the Naz Foundation, the NGO that moved the court in 2001. The high court delivered the verdict in 2009.

The Supreme Court took up the case in 2009, by when the UPA was well entrenched in power. But the home ministry under the UPA appears to have repeated what it said under the NDA. Besides, for some strange reason, the ministry referred to the 42nd report of the Law Commission when the 172nd report submitted in 2000 had recommended “deletion of Section 377”.

Eventually, the government did change its stand.

On March 1, 2012, the home ministry filed an affidavit saying a group of ministers had recommended that “there is no error in the impugned order, but the Supreme Court may take final view in the matter”. The Supreme Court added: “The learned attorney-general also emphasised that the court must take cognisance of the changing social values and reject the moral views prevalent in Britain in the 18th century.” From the contents of the judgment, it appears the government played it safe, putting forth a politically correct view at the end but leaving the final say to the court or essentially vacating the legislative space and hoping that the judiciary would take the hard decisions.

Delhi High Court had not “removed” the archaic law. It declared that “Section 377 IPC, insofar as it criminalises consensual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.

The provisions of Section 377 IPC will continue to govern non-consensual” sexual acts

Again, this is what the Supreme Court quoted ASG Malhotra, representing the home ministry, as saying: “Learned additional solicitor-general submitted that the legislature, which represents the will of the people, has decided not to delete and it is not for the court to import the extraordinary moral values and thrust the same upon the society. He emphasised that even after 60 years of Independence, Parliament has not thought it proper to delete or amend Section 377….”

PTI quoted P. Chidambaram as saying on Thursday: “They (the high court) decriminalised homosexuality only among consenting adults and in private. Therefore, there was no need to amend Section 377.… Section 377 can remain, because between two non-consenting adults it still remains a crime. So, there was no occasion to amend
the section. The amendment was necessary only after the final announcement of the judgment. The case was pending in the Supreme Court and there was no occasion to amend it.”

But Delhi High Court had specifically said that its“clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the
Law Commission of India in its 172nd report….”

The commission had submitted its report on March 25, 2000, when the NDA was in power. Four years later, the UPA came to power. Nearly a decade has passed since then but Parliament has not amended the law.

Besides, the Supreme Court had not imposed any stay on Parliament pursuing the Law Commission recommendations. In fact, the Supreme Court cited Parliament’s inaction to uphold the constitutionality of Section 377. “While this (Parliament not amending the law) does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and importance,” the court said.

Reporting by R. Balaji and Ananya Sengupta


Narendra Modi is maintaining Twitter silence and has chosen not to comment on Section 377 till Thursday night. A BJP source said the party’s candidate for Prime Minister was busy with the swearing-in ceremony in Chhattisgarh and would react at an appropriate time.

The silence stood out because Modi rarely misses a chance to tweet on national and
international developments.