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Government today moved the Supreme Court with a review petition seeking re-examination of its verdict on Section 377 of IPC, reviving the penal provision making gay sex an offence punishable with life imprisonment.
The review petition contended that the December 11 judgement of the apex court setting aside the Delhi High Court verdict decriminalising sexual intercourse between same sex of consenting adults is “unsustainable”.
The Centre’s petition settled by Attorney General G.E Vahavati sought that oral arguments be heard in an open court before disposing of its review petition.
The 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 judgement 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 judgement 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.
Criminalising homosexuality
The review petition filed by Ministry of Home Affairs said Section 377 of the IPC, insofar as it criminalises 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is further submitted that Section 377 which criminalises intercourse ‘against the order of nature’ is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860.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 which 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, that came 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 judgement 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 judgement of the High Court dated July 2, 2009, and, therefore, no appeal was filed by the Union of India against the said judgement,” the review petition said.
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