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This is an archive article published on December 13, 2013

‘Court view inconsistent with all that young India stands for’

Kapil Sibal expresses his views on the SC judgment upholding the legality of Section 377.

On his view of the judgment

I am a little disappointed that after the Delhi High Court had taken such a liberal and realistic view in the context of contemporary values and relationships,the Supreme Court has reversed that and upheld the legality of Section 377. This is a law that represents a 19th-century mindset. The world has changed in this 21st century and there are millions of people who,as an expression of their sense of freedom,express themselves in different ways,including sexually,and I think we must respect them for that. Hindu culture is essentially inclusive and liberal; our Constitution embraces liberal values. I don’t think the courts should look at such issues any differently.

On the government’s changing stands (UPA-I opposed deletion in the high court but UPA-II supported the high court judgment in the Supreme Court

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That is not true. Look at the written statements of the Attorney General submitted in court. He has filed elaborate written statements,argued very strongly before the Supreme Court that the judgment of the high court should be upheld and he also cited several judgments of other courts outside of India and suggested to the court that the Government of India’s stand in the case is that the high court verdict should be upheld. And,once the high court verdict was there,there was no need for the government to move. In fact,when the matter was discussed in the cabinet,we all believed that we should abide by the judgment of the high court.

On the way forward

We are considering all options,including filing a curative petition or seeking review of the judgment. Time is of the essence and I don’t think there should be any delay in this as every day’s delay means exposing millions of people to the consequences of Section 377.

On whether he has consulted the home minister and other colleagues on the subject

Not so far. We will be doing what we have to do in the context of the judgment soon.

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On the likelihood of a bill being introduced and passed in the current session

It all depends on how long Parliament functions. We would like it to function and pass legislation. But the legislative option is always there,as is the judicial option. There are lots of options and we will embrace that option which provides quick relief to the people.

On whether such a bill,in a divided polity,can be passed with BJP support

I don’t know what the BJP position on this issue is,as I haven’t heard any voice of the BJP since the judgment. I hope it speaks out. Of course,there are one or two persons who have spoken out but within the BJP,too,there are those who,hopefully,will embrace liberal values. But,in any case,we will cross that bridge when we come to it.

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On whether the Supreme Court missed an historic opportunity by not upholding the high court judgment

I can’t really speak for the judges. Judges have their own view of things. Sometimes the judges,because of the nature of the position they occupy,are not necessarily sensitised to the cultural moorings of the youth of the country. Maybe that is one of the reasons. But I possibly can’t comment why the Supreme Court took a particular view. All that I can say is that the view taken by the Supreme Court is inconsistent with all that young India stands for.

On the Supreme Court passing the matter on to Parliament after having taken action itself in so many cases without waiting for either the executive or the legislature

Contradictory positions are sometimes the hallmark of wisdom. Mahatma Gandhi once said that the fact that I take contradictory positions doesn’t mean that I am not fully conversant with the issues. Wisdom requires sometimes for people to take contradictory positions. So maybe this was the wisdom of the judges,reflected in this judgment. We have no problem with that,we just don’t agree with it.

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