NEW DELHI: With the Supreme Court order on gay sex creating a major uproar, the government today said it is considering all options to decriminalize homosexuality and filing a curative petition in the apex court could be one of them.
“The Government is considering all options to restore the (Delhi) High Court verdict on (Section) 377 (of IPC). We must decriminalize adult consensual relationships,” Law Minister Kapil Sibal said.
Finance Minister P Chidambaram said the Supreme Court ruling was “wrong” and all options would be looked at to set right the Supreme Court order.
Terming the judgment “disappointing”, he said the court should have applied “current social and moral values” in the case.
He said the government should file a review or curative petition and that the matter should be heard by a five-bench judge.
Chidambaram, the former Home Minister, said the Delhi High Court judgment was a “well-researched one” which the Union government accepted and did not challenge in the Supreme Court.
He added that the government’s decision of not opposing the High Court judgment in the Supreme Court was also his party’s view.
Chidambaram noted that the bench that gave the order, should have referred the matter to a five-judge bench and that the interpretation of law cannot be static. . Chidambaram said the government should ask for a review for a curative petition and the matter should be referred to a five-judge bench.
“I think the bench should have referred it to a five-judge bench and they should have looked into all aspects of law. Interpretation of law cannot be static. What you have done is, (you have) gone back in time, in 1860, and I am therefore terribly upset,” Chidambaram said.
Noting that the current section 377 was made in the year 1860, the Finance Minister said it reflected the social and moral values of that age and the knowledge of psychology, physiology, genetics in that era was extremely poor.
“But today in the year 2013, there is so much knowledge about human psychology, human physiology, human genetics to say that something like intercourse against the order of nature (is not right) and that is the social and moral value today, and therefore, it is the legal value of today. That (judgment) is completely outdated, completely retrograde,” he said.
When asked why did the government not amend section 377 while amending the rape laws in the wake of Delhi gang-rape incident, Chidambaram said the High Court judgment laid down section 377 only in a limited manner.
“They decriminalized homosexuality only among consenting adults and in private. Therefore, there was no need to amend section 377,” he said.
Chidambaram added that legislative option still remains open, because if one looks closely at section 377, that option is not required.
“Section 377 can remain, because between two non -consenting adults it still remains a crime. So, there was no occasion to amend the section. And the amendment of the section was necessary only after the final announcement of the judgment. The case was pending in the Supreme Court and there was no occasion to amend it,” he said.
Chidambaram said that if the apex court recognized live-in relationships, the legitimacy of children born out of wedlock, how could the same court refer to the LGBT community as “minuscule fraction”.
“By one account, there are at least 100 million people in the country who would fall under the LGBT category. Even assuming that it is a minuscule fraction, the Constitution takes the fundamental rights of every citizen. Even if it’s one citizen, his rights should be protected,” the Finance Minister said.
Without getting into the merit of the case, Parliamentary Affairs Minister Kamal Nath said Parliament will take an appropriate decision on the matter.
“The most important thing is that the Supreme Court …after a long time has decided that Parliament should frame these laws. There is a very distinct role for Parliament and there is a very distinct role for judiciary.
“In consonance with that…the Supreme Court has done the correct thing by leaving it to Parliament. The Parliament will take an appropriate decision on this,” he told reporters outside Parliament House.–PTI
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