Taking a ‘strong progressive’ stand on the issue of decriminalising homosexuality, the Congress-led UPA government is weighing all options on how to handle the Supreme Court’s decision that puts the ball back in the government’s court to either have a relook at Section 377 and amend it or delete it.
While the government is cautious about taking the legislative way to amend Section 377 or the executive issuance of an ordinance because of wider repercussions it can have, given the view of other political parties on the issue, it is considering the option to go in for a review or even a curative petition.
Denouncing the decision as a retrograde step, finance minister P Chidambaram indicated the possibility of a similar course of action. “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, gone back in time, in 1860, and I am, therefore, terribly upset,” Chidambaram said.
Government sources said as the Centre was made a party to the case by the court, it has the right to approach the court to seek a remedy by way of review or a curative petition.
“We have not yet been asked to prepare a draft amendment for Section 377, which is the basis of the Supreme Court’s decision. This means the ministers are first looking at other options.”
“But a better way would be once the original petitioner, Naaz Foundation, goes for a review or a curative petition, the government comes out to support it,” a senior government official said.
The mandarins favour a curative petition over review as the former allows the petitioner to bring in new facts before a five-judge bench while the latter barely reviews the decision based on old facts.
But before taking any such step, the government is trying to bring all its ministries on the same page and have a consolidated point of view. The government had come under attack by both the Delhi high court and the Supreme Court for giving divergent views on the applicability of Section 377.
Sources told dna that after Sonia Gandhi and Rahul Gandhi came out to give their opinion, the health ministry has decided to seek the view of an expert committee on the subject.
When asked why the government did not amend section 377 while amending the rape laws in the wake of Delhi gang rape incident, Chidambaram said: “... 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.”