SC to govt with 377 ruling: If you have the guts, change the law

The Supreme Court bench did not cover itself with glory when it overturned a Delhi high court verdict of 2 July 2009 that had effectively decriminalised homosexuality. Under section 377 of the Indian Penal Code (IPC), any sexual act of an “unnatural” nature could attract penalties ranging from 10 years to a life sentence. The reason: it was not for courts to create the law, a two-judge bench headed by Justice GS Singhvi, said. Inherent in this verdict is a challenge to the government: if you have the guts, change the law yourself. Don’t ask us to do it. [caption id=“attachment_1281417” align=“alignleft” width=“380”] Representational image: Reuters[/caption] While the Supreme Court clearly played safe by lobbing the ball back to the government and parliament in an election year, the least it could have done was to ask the government to review the law on the simple ground that what people do in private on a consensual basis cannot be a criminal activity and goes against the basic principle of equal rights to people with different sexual orientation. However, in a different way, one cannot fault the apex court for this copout, for it has been the UPA’s consistent argument for several years now that courts and other constitutional authorities (like the Comptroller and Auditor General, for example) are infringing on the rights of the executive by trying to force decisions down their throats. In fact, as recently as last week, Finance Minister P Chidambaram, while speaking at The Economic Times Awards night, made a very strong pitch against the courts. He said _(read the full speech here _ ) : “The balance in India has swung away from the executive, and in recent years has swung away even from parliament and the legislature, and the judiciary has taken the upper hand. I have a great respect for the judiciary but what judicial institutions, and sometimes even quasi-judicial institutions have done, in my respectful submission, have completely altered the balance that is required on governance.” He added: “Parliament must make laws to support executive decisions, parliament must scrutinise executive decisions but parliament cannot take over governance; more so judicial institutions cannot take over governance.” The Supreme Court verdict on section 377 today (11 December 2013) will either call Chidambaram’s bluff or enable the UPA to call the courts’ bluff. The UPA now needs to walk the talk on rolling back judicial activism. Homosexuality is exactly the kind of hot-button topic where society is deeply divided, and where passions can rise before an election. Decriminalising homosexuality is not a vote winner except in small liberal circles. On the contrary, parties taking a strong stand on this issue could lose some traditional votes – though that remains to be seen. In fact, the Delhi high court judgment was challenged by some members of the BJP, and religious organisations such as the All India Muslim Personal Law Board, the Utkal Christian Council and the Apostolic Churches Alliance had challenged the Delhi High Court judgment. The truth is, whatever Chidambaram may say, the UPA government has not shown any stomach for difficult decisions which are entirely in the executive’s domain – from raising fuel prices to reducing non-merit subsidies. Its idea of governance is restricted to handing over goodies and legislating all kinds of entitlements on the assumption that these will fetch votes. In another sense, the section 377 verdict suggests that the Supreme Court is not above showing up the executive’s own cowardice by suddenly sticking to the letter of the law and saying that it is not within the court’s ambit to make new law. During the hearing process, in fact, the Supreme Court bench had upbraided the Centre for its “casual” approach on section 377 and made remarks about why parliament is not discussing such important issues. Effectively, the court is telling the UPA and parliament: if you think you have the power to change the law, change it. Don’t lob the ball to my court because you don’t have the gumption to do so.