SC Must Review 377 : BJP & Congress

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New Delhi: Two top leaders of BJP and Congress on Saturday came out in support of gay rights, saying that the Supreme Court must reconsider its decision upholding Section 377 of the Indian Penal Code.

Finance minister Arun Jaitley and his predecessor P Chidambaram said the Supreme Court should not have reversed the Delhi high court order de-criminalizing consensual sex among gay adults. Jaitley said the SC’s view was not in sync with the jurisprudential development on gay rights world over and added that the apex court must review its 2013 judgment to do away with the penal provision in Section 377 as far as gay relationships are concerned.

“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,” he said.

Jaitley is the first leader from the government to have supported de-criminalization of consensual sex among gay adults. Although he was speaking in his individual capacity, his comments may revive the debate on an issue which many right-wingers consider to be a taboo.

Speaking just afterwards, Chidambaram ,who was also speaking in his personal capacity, said that the Delhi High Court verdict decriminalizing gay sex was a wonderful one and the Supreme Court should have stayed with it.

The finance minister was also critical of the SC’s judgment scrapping the National Judicial Appointments Commission (NJAC). He said this judgment too needed to be reconsidered. “This judgment meant that the CJI would virtually appoint judges and that elected representatives were not to be trusted on this issue. It’s not a fair argument as elected bodies are basic part of the Constitution. The judgment needs reconsideration.”

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.

“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.

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