Monday, 30th October 2017

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Govt gets a taste of SC 'wisdom'

'Flattery' whiplash on fence-sitter

By R. Balaji
  • Published 7.09.18
LGBT community members celebrate outside the Supreme Court. Picture by Prem Singh

New Delhi: The Supreme Court on Thursday ticked off the NDA government for failing to take a definite stand on the law that criminalised gay sex, neither opposing it nor defending it but leaving the matter to the "wisdom" of the apex court.

"All that the stand of the government indicates is that it is to the 'wisdom' of this court that the matter is left," Justice D.Y. Chandrachud noted, referring to an affidavit submitted by the additional solicitor-general on the Centre's behalf.

"In reflecting upon this appeal to our wisdom, it is just as well that we as judges remind ourselves of a truth which can unwittingly be forgotten: flattery is a graveyard for the gullible."

Justice Chandrachud was part of a five-judge constitution bench that decriminalised private consensual gay sex between consenting adults, striking down a provision in Section 377 of the Indian Penal Code as unconstitutional.

Gay rights petitioners had challenged a 2013 ruling by a two-judge apex court bench that had, in the Suresh Kumar Koushal vs Naz Foundation case, set aside a July 2009 Delhi High Court verdict decriminalising consensual adult gay sex.

"Implicit in this (the Centre's affidavit) is that the government has no view of its own on the subject and rests content to abide by the decision of this court," Justice Chandrachud said.

"We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377 and on the correctness of Koushal. The ambivalence of the government does not obviate the necessity for a judgment on the issues raised."

He added: "The challenge to the constitutional validity of Section 377 must squarely be addressed in this proceeding. That is plainly the duty of the court. Constitutional issues are not decided on concession. The statement of the Union government does not concede to the contention of the petitioners that the statutory provision is invalid. Even if a concession were to be made, that would not conclude the matter for this Court. Bereft of a submission on behalf of the Union government on a matter of constitutional principle, these proceedings must be dealt with in the only manner known to the constitutional court: through an adjudication which fulfils constitutional values and principles."

However, even the previous UPA government had not taken a clear position on the matter.

First, the UPA government took contradictory positions in Delhi High Court. While the home ministry defended Section 377 citing public morality, the health ministry advocated its repeal saying the fear of stigma was deterring many LGBT people from seeking or receiving proper healthcare against sexually transmitted diseases, particularly HIV infections.

When the matter went to the apex court, the UPA government adopted a hands-off stance saying it did not want to appeal against the Delhi High Court judgment and would leave the matter entirely to the apex court.