Gay sex legality: court slam government

Decriminalising gay sex in India, the Delhi High Court Thursday also pulled up the government for its stand that judiciary should refrain from interfering on the issue that is under the ambit of parliament.

“We are constrained to observe that the submissions of the additional solicitor general reflect rather poorly on his understanding of the constitutional scheme. The judiciary is constituted as the ultimate interpreter of the constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government,” the court said.

“A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take it out of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problem,” it said quoting a Supreme Court judgement.

The high court verdict assumes importance as the government has been grappling with the option to scrap Section 377 of the Indian Penal Code (IPC), which makes a homosexual act a crime, from the statute.

“In our opinion, the court should, therefore, ordinarily defer to the wisdom of the legislature unless it enacts a law about which there can be no manner of doubt... It is true that the courts should ordinarily defer to the wisdom of the legislature while exercising the power of judicial review of legislation. But it is equally well settled that the degree of deference to be given to the legislature is dependent on the subject matter under consideration,” the high court said.

"The role of the judiciary is to protect the fundamental rights. A modern democracy while based on the principle of majority rule implicitly recognises the need to protect the fundamental rights of those who may dissent or deviate from the majoritarian view. It is the job of the judiciary to balance the principles ensuring that the government on the basis of number does not override fundamental rights,” the court noted in its 105-page judgement.

Last updated on Jul 2^nd, 2009 at 20:47 pm IST--IANS