Centre files review petition in Supreme Court against its ruling on Section 377

The review petition contended that the December 11 judgement of the apex court setting aside the Delhi High Court verdict that decriminalised homosexuality saying gay sex is illegalu00a0 The Centre39s 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 quotsuffers from errors apparent on the face of the record and is contrary to wellestablished principles of law laid down by this court enunciating the width and ambit of Fundamental Rights under Articles 14 15 and 21 of the Constitutionquot 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 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 Constitutionu00a0 quotIt is further submitted that Section 377 which criminalises intercourse 39against the order of nature39 is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860u00a0 quotThey do not have any legal sanctity and in any case are unlawful in view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 Constitutionquot the petition said adding this court has held that quota statute which was justified when enacted could with the passage of time become arbitrary and unreasonablequotu00a0 Further the Centre contended that the apex court arrived at various conclusions which are contrary to wellestablished canons of law as laid down by this court quotThe 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 wellestablished canons of lawquot it saidu00a0 While assailing the verdict that came under attack as being quotmedieval and regressivequot the review petition said the submissions of the Centre made during the hearing of the appeal that the high court39s judgement did not suffer from any legal infirmity were not at all considered by the apex courtu00a0 quotThe 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 judgementquot the review petition said The petition said though the apex court39s verdict noted the submissions of the Attorney General the same were not at all dealt with in the entire 98page judgementu00a0 quotIt is submitted that the petitioner Centre had found no legal error in the High Court decision and thus had accepted the correctness of the same affidavit on behalf of Union of India through the Ministry of Home Affairs dated March 1 2012 Though the Parliament is mandated with the task of enacting legislations it is the Executive ie the Government that defends the constitutionality of statutes in this courtquot the petition saidu00a0 It further added quotThis court could not have ignored the fact that the Union of India had made a considered decision not to challenge the High Court decision and had accepted the verdict that Section 377 was unconstitutional in so far as it criminalised adult consensual sexual acts in privatequotu00a0 The Centre also questioned the locus standi of the third parties on whose appeal the apex court had passed its verdict quotThe High Court judgement was challenged mostly by third parties who were not party to the original writ petition in the High Court This court ought to have dismissed the Special Leave Petitions at the admissibility stage itself since it is the prerogative of the State to defend the constitutionality of statutes and not that of the third partiesquot the petition saidu00a0 The Centre also questioned the apex court39s observation that quotdespite the decision of the Union of India not to challenge in appeal the order of the High Court the Parliament has not made any amendment in the lawquotu00a0 quotThis approach is entirely misconceived If a statute is declared unconstitutional Parliament has no further role to play to add to or endorse a judicial declarationquot the petition said u00a0 u00a0