Curious case: In review of SC gay ruling, Govt says its law is illegal
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as "unlawful" and "unconstitutional", and sought a review of the Supreme Court ruling that confirmed the legality of IPC Section 377.
Under Section 377, voluntary "carnal intercourse against the order of nature with any man, woman or animal" is punishable with imprisonment from 10 years to life. In an order passed on December 11, the Supreme Court said gay sex was an offence "irrespective of age and consent".
In its appeal filed on Friday, the government said, "Section 377 IPC, insofar as it criminalises consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution."
It emphasised that the section reflected sodomy laws of the UK that have now lost legal sanctity, and were also "unlawful in view of the Constitutional mandate of Articles 14, 15 and 21 of the Constitution".
Article 14 guarantees equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.
Seeking a hearing in open court, the government demanded a review of the December 11 judgment in order "to avoid grave miscarriage of justice" to thousands of lesbians, gays, bisexuals and transgenders (LGBT), who have been put at the risk of prosecution and harassment following the "re-criminalisation" of their sexual identities.
It said criminalising sexual expressions "strikes at the root of the dignity and self-worth" of the LGBT community, thousands of whose members had come out following the 2009 judgment of the Delhi High Court — but who had suddenly become "vulnerable to abuse and discrimination and require(d) immediate relief".
On December 11, a Supreme Court bench led by Justice G S Singhvi held that Section 377 did "not suffer from any constitutional infirmity", and that it was for Parliament "to consider the desirability and propriety of deleting (it) from the statute book or amend it".
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