Section 377 Decision By Supreme Court Needs Relook Say Jaitley, Chidambaram

29/11/2015 9:51 AM IST | Updated 15/07/2016 8:25 AM IST

Two top leaders of BJP and Congress on Saturday unanimously came out in support of gay rights, saying that the Supreme Court ought to relook its 2013 judgment upholding Section 377 that criminalizes gay-sex relations.

Speaking at the Times LitFest, Finance Minister Arun Jaitley and his predecessor P Chidambaram said that the Supreme Court should not have reversed the Delhi high court order de-criminalizing consensual sex among gay adults and that the top court's view was not in sync with contemporary legal thought on the development of gay rights across the world.

"When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi High Court's view appears more acceptable," said Jaitley.

Both parliamentarians however clarified that they were speaking in their individual capacity, on a contentious subject that has also united several religious groups--Hindu, Muslim and Christian--in their opposition to decriminalizing gay sex.

The Delhi High Court's 2009 judgment decriminalizing Section 377 to stop police harassment of adults of same sex having consensual sexual relationship in private was challenged in the SC by religious bodies. Shutting the small window for gay rights opened by the HC, the SC had in 2013 held that Section 377 providing punishment for gay sex was constitutionally valid.

The SC had in 2014 rejected petitions seeking review of its 2013 judgment. However, there still is a last theoretical chance for the SC to reconsider its 2013 judgment when it takes up curative petitions pointing out glaring legal infirmities in the verdict.

Jaitley said the 2013 judgment criminalizing gay sex was reflection of the society's archaic view. The court's approach towards such issues should change with the changing times.

He said had the SC judgment come 50 years ago, it would have been understandable but not in present era when there is universal movement towards their acceptability.

Also Read: I Am A Criminal In My Country For Loving Someone Of My Gender

"The court was not dealing with any personal law and was on the issue of order of nature and the Delhi high court has held that it was not an offence. The SC took a very conservative approach on the issue and the judgment needs to be reconsidered," he said.

Legalizing gay sex has been a vexed issue for the political class. Initially the UPA government had taken a stand in the SC to term the HC judgment decriminalizing gay sex as an erroneous verdict. However, with pressure from the LGBT community mounting, the UPA government had left it to the SC to take a view on the issue.

In its 2013 judgment, the Supreme Court had put the ball in the government's court, saying it was free to amend the law by scrapping or reading down Section 377 of Indian Penal Code through legislation. In 2009, the HC had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.

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