Arguing strongly for decriminalising gay sex, the Centre on Tuesday said the Supreme Court had failed to consider “the dynamic nature of the law” in respect of homosexuality.
“The view adopted by this court is contrary to the principles enshrined in the law. The court cannot allow itself to be tied down by and become captive to a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience,” the Centre said.
On the apex court indicting the Delhi High Court on the grounds that it ought to have exercised self-restraint while decriminalising Section 377 of the IPC, 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.”
The Centre defended itself when the court observed that Parliament had failed to amend Section 377.
“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 Centre maintained.
When the apex court pointed out that only a miniscule number of persons had been penalised so far, the Centre said: “The number of people affected is irrelevant when it comes to deciding an issue of constitutionality. The present review petition is being filed to avoid grave miscarriage of justice to thousands of LGBT persons who have been aggrieved by the order of this court and have been put at risk of prosecution and harassment, upon re-criminalisation of their sexual identities.”
The Centre pleaded for review of the court’s judgment, arguing that “following the High Court judgment that decriminalised adult consensual sexual acts in private, including homosexual acts, a considerable number of LGBT persons had become open about their sexual orientation and identity in their families, workplaces, educational institutions and public spaces, amongst others.”
With homosexuality becoming criminal again, “all those people suddenly have become vulnerable to abuse and discrimination and require immediate relief,” the petitioner said.