On Section 377, govt canít shirk what is its call
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Amid growing voices against retention of Section 377 in the IPC in its present form, the UPA government has sought a review of the judgment by the Supreme Court that upheld the constitutionality of the provision. The review petition, settled by the Attorney General, makes a curious case where the government is arguing against its own law. It apparently wants to shoot from the shoulders of the Supreme Court, although the court left it to Parliament to decide.
After all, Section 377 has been in code for more than 150 years. The government chose not to tinker with it despite a bunch of petitions against it pending in the Delhi High Court and later in the Supreme Court for 12 years. While in the high court, the government adopted a stand against amendment in or deletion of Section 377, it opted in the apex court not to oppose decriminalisation of consensual gay sex in private.
Nothing in law prevented the government to amend or repeal Section 377 while the courts heard the case for 12 years. Interestingly, the AG assisted the Supreme Court as amicus curiae and said in March 2012 that a proviso would have to be added in Section 377 to exclude sexual activity between consenting adults in private. Without a doubt, adding a proviso in Section 377 is legislative business and no such direction could ever be issued by the court. However, the government waited for the Supreme Court to decide.
Now that the court has overturned the Delhi High Court judgment legalising homosexuality, the government has come out in the open terming Section 377 "unlawful", "unconstitutional" and a law expressing the will of Englishmen who drafted the IPC in 1860, and not the present day will of Parliament.
Even when the government revamped the criminal law after the December 16 fatal gangrape case and focused on sexual offences, it did not change anything in Section 377. That was evidently the will of Parliament.