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Govt files review petition in SC on homosexuality verdict

New Delhi, Dec 20 (PTI) : The Union government on Friday filed a review petition in the Supreme Court seeking re-examination of its verdict on Section 377 of the Indian Penal Code that has revived the penal provision making gay sex an offence punishable with life imprisonment.

The review petition termed as “unsustainable” the December 11 judgment of the apex court setting aside the Delhi High Court verdict decriminalising sexual intercourse between same-sex consenting adults.

Attorney General G E Vahavati sought that oral arguments be heard in an open court before the review petition is disposed off. 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 judgment 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.”

While setting aside the July 2, 2009, judgment 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is further submitted that Section 377 which criminalizes intercourse 'against the order of nature' is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860.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.”

Further, the Centre contended that the apex court arrived at various conclusions that are contrary to well-established canons of law as laid down by this court.

“The Union of India, in the present review, will deal with each such conclusion to show errors apparent on the face of the record, being wholly contrary to well-established canons of law,” it said.

While assailing the verdict, which has come 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 judgment 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 judgment of the High Court dated July 2, 2009, and, therefore, no appeal was filed by the Union of India against the said judgment,” the review petition said.

The petition said that, although the apex court's verdict noted the submissions of the Attorney General, the same were not at all dealt with in the entire 98-page judgment.

“It is submitted that the petitioner (Centre) had found no legal error in the High Court decision and thus had accepted the correctness of the same (affidavit on behalf of Union of India through the Ministry of Home Affairs dated March 1, 2012).

“Though the Parliament is mandated with the task of enacting legislations, it is the Executive, i.e. the Government that defends the constitutionality of statutes in this court,” the petition said.        It added “This court could not have ignored the fact that the Union of India had made a considered decision not to challenge the High Court decision and had accepted the verdict that Section 377 was unconstitutional, in so far as it criminalised adult consensual sexual acts in private.”

The Centre also questioned the locus standi of the third parties on whose appeal the apex court had passed its verdict.

“The High Court judgment was challenged mostly by third parties, who were not party to the original writ petition in the High Court. This court ought to have dismissed the Special Leave Petitions at the admissibility stage itself, since it is the prerogative of the State to defend the constitutionality of statutes and not that of the third parties,” the petition said.

The Centre also questioned the apex court's observation that “despite the decision of the Union of India not to challenge in appeal the order of the High Court, the Parliament has not made any amendment in the law.”

“This approach is entirely misconceived. If a statute is declared unconstitutional, Parliament has no further role to play to add to or endorse a judicial declaration,” the petition said.

The Centre's petition submitted that while law-making is the sole responsibility of Parliament, it is the task of this court to judge the constitutional validity of laws.

“Non-amendment of law by Parliament, especially a pre-constitutional law, is not a limitation on the power of judicial review.

“It is the bounden duty of this court, as the protector and guarantor of fundamental rights of people, to strike down any law that violates the fundamental rights.

“It is submitted that the judgment suffers from glaring legal errors and seeks to invoke certain legal principles which were inapplicable in the facts of the present case,” the petition said.

The Centre also questioned the apex court's observation that the high court had overlooked a “minuscule fraction of the country's population constitute lesbians, gays, bisexuals or trans genders (LGBT) and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 of the IPC.

“It is clear that the number of people affected is irrelevant when it comes to deciding an issue of constitutionality. This court, when arriving at this observation, did not take into account settled law on the subject,” 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 Delhi 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.

“This clearly showed that the petitioner believed that Section 377 acted as an impediment to public health interventions,” the petition said, adding that the present review petition has been filed to “avoid grave miscarriage of justice to thousands of LGBT persons” who have been aggrieved by December 11 judgment.