NGO Naz Foundation yesterday moved the Supreme Court seeking a review of its ruling over Section 377 of the Indian Penal Code, according to which homosexuality or same gender sex between two adults is a criminal offence. In a jolt to the lesbian, gay, bisexual and transgender (LGBT) community, the apex court held on December 11 that consensual sex between adults of the same gender was illegal and an offence according to the existing law.
The central government has already filed a review plea on the apex court ruling. The apex court set aside the 2009 Delhi High Court verdict that decriminalised homosexuality. The high court ruling had come on a public interest litigation (PIL) by Naz Foundation. An apex court bench of Justice GS Singhvi and Justice SJ Mukhopadhaya held that there was no constitutional infirmity in Section 377 of the IPC, which makes gay sex an offence punishable with up to life imprisonment.
However, the court said appropriate changes in Section 377 can be made through legislation and parliament must take a decision on the issue and that the judiciary has no role in it. The New Delhi-based foundation sought an interim suspension of the operation of the judgment. It said in its petition that the judgment has caused immense prejudice to all adult people who engage in consensual sex, particularly those from the LGBT community, who suddenly have been put at risk of prosecution under criminal law. “In the last four years, many people from the LGBT community have become open about their sexual identity and disclosed their intimate relationships on the basis of the high court judgment decriminalising the same,” the plea said.
Errors of law
“There are a number of grave and manifest errors of law and wrong application of law in the impugned judgment that need to be corrected under review by this court,” the review petition said. “The judgment is contrary to the grain of Supreme Court’s own jurisprudence on advancement of fundamental rights and freedoms of all people, especially those who face marginalisation in society,” it said.
The Supreme Court in its order said that those who indulge in carnal intercourse against the order of nature constitute different classes and could not claim that “Section 377 suffers from the vice of arbitrariness and irrational classification”. It said the high court while reading down Section 377 “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders”.
“... in last more than 150 years, less than 200 people have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution,” the apex court bench said.
Section 377 says
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”