November,29,2015: Two top leaders of BJP and Congress on Saturday came out in support of gay rights, saying that the Supreme Court must reconsider its decision upholding Section 377 of the Indian Penal Code.
Speaking at the Times LitFest, finance minister Arun Jaitley and his predecessor P Chidambaram said the Supreme Court should not have reversed the Delhi high court order de-criminalizing consensual sex among gay adults. Jaitley said the SC's view was not in sync with the jurisprudential development on gay rights world over and added that the apex court must review its 2013 judgment to do away with the penal provision in Section 377 as far as gay relationships are concerned.
"When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi High Court's view appears more acceptable," he said.
Jaitley is the first leader from the government to have supported de-criminalization of consensual sex among gay adults. Although he was speaking in his individual capacity, his comments may revive the debate on an issue which many right-wingers consider to be a taboo.
Speaking just afterwards, Chidambaram ,who was also speaking in his personal capacity, said that the Delhi High Court verdict decriminalizing gay sex was a wonderful one and the Supreme Court should have stayed with it.
The finance minister was also critical of the SC's judgment scrapping the National Judicial Appointments Commission (NJAC). He said this judgment too needed to be reconsidered. "This judgment meant that the CJI would virtually appoint judges and that elected representatives were not to be trusted on this issue. It's not a fair argument as elected bodies are basic part of the Constitution. The judgment needs reconsideration."
The Delhi High Court's 2009 judgment decriminalizing Section 377 to stop police harassment of adults of same sex having consensual sexual relationship in private was challenged in the SC by religious bodies. Shutting the small window for gay rights opened by the HC, the SC had in 2013 held that Section 377 providing punishment for gay sex was constitutionally valid.
The SC had in 2014 rejected petitions seeking review of its 2013 judgment. However, there still is a last theoretical chance for the SC to reconsider its 2013 judgment when it takes up curative petitions pointing out glaring legal infirmities in the verdict.
Jaitley said the 2013 judgment criminalizing gay sex was reflection of the society's archaic view. The court's approach towards such issues should change with the changing times.
He said had the SC judgment come 50 years ago, it would have been understandable but not in present era when there is universal movement towards their acceptability.
"The court was not dealing with any personal law and was on the issue of order of nature and the Delhi high court has held that it was not an offence. The SC took a very conservative approach on the issue and the judgment needs to be reconsidered," he said.
Legalizing gay sex has been a vexed issue for the political class… Initially the UPA government had taken a stand in the SC to term the HC judgment decriminalizing gay sex as an erroneous verdict. However, with pressure from the LGBT community mounting, the UPA government had left it to the SC to take a view on the issue.
Interestingly, the SC in its 2013 judgment had put the ball in the government's court, saying it was free to amend the law by scrapping or reading down Section 377 of Indian Penal Code through legislation. In 2009, the HC had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.
He also cited the Habeas Corpus A D M Jabalpur case to recall how judiciary buckled under political pressure when people's fundamental rights were erased during the dark days of Emergency. He said the SC had failed to live up to the people's expectations when it had ruled that the fundamental rights of citizens could be suspended during Emergency.
Supreme Courts Judgment on Section 377 IPC
Delhi High Court Judgment on Section 377 IPC