GayBombay: Tough to fault HC 377 ruling: Law Ministry

Indian Express

Tough to fault HC 377 ruling: Law Ministry

Maneesh Chhibber Posted online: Wednesday, Jul 22, 2009 at 0855 hrs

New Delhi : The Union Law Secretary has told the government that it’s difficult to find any lacunae in the judgment of the Delhi High Court which struck down provisions in Section 377 of the IPC that criminalised homosexuality.

This comes when the Centre has sought time from the Supreme Court to formulate its stand on the issue. On Tuesday, it told the court it did not want a stay on the July 2 verdict of the Delhi High Court that legalised gay sex among consenting adults.

In his report to Union Law Minister M Veerappa Moily, Law Secretary T K Vishwanathan is also learnt to have said that there are no sufficient grounds on the basis of which an appeal could be maintainable in the Supreme Court. He has also suggested an innovative way out of the impasse.

The Law Secretary had been asked to submit a report at a meeting of the Union Ministers of Law, Home and Health on July 3. Moily is expected to share the Secretary’s report with the Home and Health Ministers later this month.

Vishwanathan is learnt to have recommended that a March 2000 report of the Law Commission on review of the IPC and CrPC on rape could be one answer to the government’s problem.

In this report, the Commission had recommended repealing Section 377 and making rape “gender-neutral.”

At present, only a man can be charged under the offence of rape of a woman. A male member of the society can’t levy rape allegations against anybody. This offence is dealt with the section dealing with sodomy.

In its report, submitted by then Chairman of the Commission, Justice B P Jeevan Reddy (retd), to then Union Law Minister Ram Jethmalani, the Commission recommended that instead of rape, those accused under Section 375 of the IPC

should be accused of sexual assault. This would include forcible oral sex.

The panel also recommended that the minimum punishment under Section 375 be five years.

It also recommended addition of a new Section 376E in the IPC to deal with ‘Unlawful sexual contact’, which would include touching with “sexual intent any other person.

On the question of Section 377, this is what the Commission wrote: “In the light of the change effected by us in Section 375, we are of the opinion that Section 377 deserves to be deleted. After the changes effected by us in the preceding provisions (Sections 375 to 376E), the only content left in Section 377 is having voluntary carnal intercourse with any animal. We may leave such persons to their just deserts.”

Despite initially making loud noises about doing a rethink on Section 377, senior functionaries of the Union Ministers backtracked after religious leaders opposed any move to do away with laws that ban homosexuality.

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