In review plea, Centre says laws must reflect society’s aspirations

The Centre on Friday asserted before the Supreme Court that laws must reflect social change and society’s aspirations, and should not operate in a vacuum.

In a petition seeking review of its judgment that invalidated a Delhi High Court verdict decriminalising homosexuality, the Centre said the conclusion “that it is not empowered to strike down a law merely because perception of society has changed is patently erroneous. Law does not operate in a vacuum but in a social context.”

Review petitions are normally heard in the chambers of a senior judge. If the petition is accepted for hearing, it will be listed for open hearing and notice will be issued to the parties concerned. If thepetition is dismissed in the chambers, the next option for the Centre is to file a curative petition, which will be heard by a minimum of four seniormost judges and a maximum of five judges.

The review petition said there was a sea change, not just in India, but all over the world, on the law on homosexuality. “A majority of the countries have legalised homosexuality. Even in India, Section 377 IPC was introduced not as a reflection of existing Indian values and traditions, but rather, it was imposed upon Indian society due to the moral values of the colonisers. Indian society prior to enactment of the IPC had a much greater tolerance of homosexuality.”  The apex court, the Centre said, failed to consider the dynamic nature of law, particularly with respect to homosexuality. “The view adopted by this court is contrary to the principles enshrined in the law laid down i.e. that the court cannot allow itself to be tied down by and become captive of a view which in the light of subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience.”   

On its indictment that the Delhi High Court ought to have exercised self-restraint while decriminalising Section 377, the Centre said: “Self-restraint must be exercised and the court must be guided by the presumption of constitutionality if the provision directly transgresses or substantially and inevitably affects the fundamental right. Secondly, the presumption of constitutionality has no relevance when a violation of constitutional provisions has been demonstrated.”Referring to the court’s observation that Parliament had failed to amend Section 377, the government said: “Whether a law is constitutional or not is certainly not dependent upon whether the legislature has thought it fit to retain a provision in the statute or not. It depends on whether that provision in effect violates the provisions of the Constitution.”

The apex court’s observation that only a miniscule had been penalised so far under the law was “irrelevant when it comes to deciding an issue of constitutionality.” 

The review petition “is being filed to avoid a grave miscarriage of justice to thousands of LGBT [lesbian gay, bisexual and transgender] persons, who have been aggrieved by the order and have been put at risk of prosecution and harassment, upon re-criminalisation of their sexual identities. Following the High Court judgment that decriminalised, adult consensual sexual acts in private, including homosexual acts, a considerable number of LGBT persons became open about their sexual orientation and identity in their families, and at workplaces, educational institutions and public spaces. All those people suddenly have become vulnerable to abuse and discrimination and require immediate relief.” The Centre pleaded for an open hearing.

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