December 20, 2013

Govt Files Review Petition on S.377

Government files review petition in SC on S.377 verdict; Claims Apex Court verdict is "legally unsustainable"

Section 377
The Central government has today (Dec 20) filed a review petition in the Supreme Court seeking re-examination of its judgment on Section 377 of the Indian Penal Code. The judgment, delivered on December 11, 2013, recriminalized homosexuality and stated that it was up to the Parliament to amend Section 377.
In the review petition drawn by Advocates Devdutt Kamat and Anoopam N. Prasad and settled by Attorney General Goolam E Vahanvati, the government has also requested for an oral hearing prior to disposing off the review petition.
A Division Bench comprising Justices GS Singhvi and SJ Mukhopadhaya had struck down a Delhi High Court judgment, holding that Section 377 IPC did not suffer from the vice of unconstitutionality and that the declaration made by the Division Bench of the High Court was ‘legally unsustainable’.
In the petition filed by Ministry of Home Affairs, the Centre has taken a number of grounds to contend that the Supreme Court judgment,
“suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by this court enunciating the width and ambit of fundamental rights under Articles 14, 15 and 21 of the Constitution.”
The government has contended that,
“Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.”
The petition further states that, “Section 377 which criminalizes intercourse ‘against the order of nature’ is a reflection of outdated sodomy laws of the United Kingdom which were transplanted into India in 1860”, adding that “They do not have any legal sanctity and in any case are unlawful in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 Constitution”.
The government has also argued in the petition that Supreme Court failed to consider that the Union of India had taken a categorical stand that there was no legal error in the judgment of the Delhi High Court and, therefore, no appeal was filed by the Union of India against the said judgment.
Placing reliance on the fact that the appeal was not by the government but by third parties, the review petition states that,
“The High Court judgment was challenged mostly by third parties, who were not party to the original writ petition in the High Court. This Hon’ble Court ought to have dismissed the SLPs 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 parties.”
Arguing that “the principles of presumption of constitutionality and the principle of judicial restraint were neither applicable nor relevant in the facts and circumstances of the present case” the government has submitted that “Whether the 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 is submitted that the Hon’ble Court in the impugned order has unfortunately lost sight of this basic principle of judicial review.”
Interestingly, the petition refers to an earlier judgment of Justice Singhvi in A. Manjula Bhashini v. A.P. Women’s Coop. Finance Corpn. Ltd., wherein it was held that:
“67. …..If the court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down.”
The petition further states that the impugned judgment fails to consider that law is not static, but is dynamic and changes with the perceptions of society and that “the number of people affected is irrelevant when it comes to deciding an issue of constitutionality.”
Earlier, one of the respondents in the case, Naz Foundation had also stated that they would seek recourse to all possible legal remedies against the Supreme Court judgment including review.

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