Union law minister Kapil Sibal asserted the government’s intention to take up Section 377 (to de-criminalize homosexuality) if Parliament is allowed to run but the fact is that the Congress-led UPA government does not have nerve to take up such controversial issue when there is a surge of tide against it.
“It’s the Supreme Court’s prerogative under the Constitution to test the constitutionality of a law. They are exercising their prerogative. We have the prerogative to make laws. We shall exercise our prerogative. The opinion of the Supreme Court must be respected by the government and legislature is the final arbiter of what the law should be. I won’t extend my comment beyond that,” said Sibal.
Sibal’s remarks came in response to the Supreme Court view holding decriminalizing homosexuality as constitutionally invalid.
Setting aside the 2009 Delhi high court judgment, the Supreme Court said that this (de-criminalizing homosexuality) is not a matter for the courts to decide, thus putting the onus on the Central government to pass a legislation to amend article 377 in Parliament.
Member of the Group of Ministers (GoM) to take a view on Article 377, Sibal along with the then union home minister P Chidambaram in 2009 had given recommendation to decriminalise homosexuality.
The recommendation later reflected in the affidavit filed by the union home secretary RK Singh in the Supreme Court last year.
However, government sources said though Sibal and many other ministers still hold the same view and under normal circumstances might have taken it up, the government would not risk raking up the controversial issue of decriminalizing gay sex for the fear of stiff resistance by many political parties in parliament.
Moreover, there is no consensus within the Congress, party sources said, as it is aware that a step in favour of gay rights can increase its unpopularity as most of India, especially religious groups cutting across various religions, are totally against it and see it as a sin.
There is also no denying the fact that gays and lesbians have a very thin population in India and no action in their favour will hardly reflect in the elections.
The high court decision itself was challenged by various social and religious organisations in the Supreme Court by arguing that gay sex is against the cultural and religious values of the country.
The ones who challenged the high court judgment included religious organisations like the VHP, the All India Muslim Personal Law Board, the Utkal Christian Council and the Apostolic Churches Alliance.