Drafting the Criminal Law (amendment) Bill in the wake of the December 2012 gangrape and murder of a 23-year-old woman in Delhi, the Union Ministry of Home Affairs (MHA) had in 2013 proposed deletion of Section 377 of IPC and instead replace it with Section 376F, which deals with unlawful sexual contact and sodomy of children.
The government’s decision was based on the 172nd report of the Law Commission on “review of rape laws”, officials said.
During Tuesday’s hearing on the validity of Section 377 before the Supreme Court, the counsel of one of the petitioners quoted the 172nd report of the Commission while challenging re-criminalisation of consensual gay sex.
The recommendation, suggested in 2000, when the Atal Bihari Vajpayee government was in power, noted, “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.”
While the UPA government accepted the Law Commission’s recommendation on Section 375 of IPC at the time of the Criminal Law (Amendment) Bill, 2013, it developed cold feet in amending Section 377 since the matter was pending before Supreme Court.
An official familiar with the development said, “The government was then already facing heat from the apex court over various scams and the independence of CBI. It was (thus) decided to let Supreme Court take the final call.”
In 2013, the apex court was about to hear a petition challenging the 2009 Delhi High Court ruling, which had decriminalised gay sex. On December 11, 2013, a two-judge Supreme Court bench of Justices G S Singhvi and S J Mukhopadhaya overturned the HC order and held that IPC 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable”.
The court left it to Parliament to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”, if it so wished. The top court observed that the HC had “overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders, and in last more than 150 years less than 200 persons have been prosecuted”.
In 2012, the UPA government filed a formal affidavit in Supreme Court, informing about its stand on Section 377 and in a manner confirming that it is not opposed to the Delhi HC decision to decriminalise it. The decision was based on a Group of Ministers comprising the Union ministers of Home, Law, and Family Welfare and was filed by the then Union Home Secretary.
In January 2018, the SC, reversing its 2013 judgment, said it is willing to reconsider the decision and a larger bench of judges began hearing on constitutional validity of the law.