Section 377: Former Law Minister Kapil Sibal explains why UPA didn't bring in law de-criminalising gay sex

On Thursday, as the SC finally read down Section 377 decriminalising consensual sex between same-sex individuals, the Congress hailed the verdict.

In the first UPA, Home Minister Shivraj Patil and Law Minister HR Bhardwaj were wary about supporting the decriminalisation while Health Minister Anbumani Ramadoss was on the other side. Their bickering actually led PM Manmohan Singh to ask them to resolve their differences. 

Delhi High Court Chief Justice AP Shah, in July 2009 judgement had mentioned the contradictory affidavits. While the Home Ministry wanted to retain Sec 377, Health Ministry believed that it hampered HIV/AIDS prevention.

This muddled approach continued into 2013, when Congress wary of a backlash from conservative voters argued against decriminalising. ASG PP Malhotra representing the Centre, said that decriminalising Sec 377 would be 'immoral, unethical and abhorrent'.

The UPA govt drafted a statement letting SC take a view. After SC reversed Delhi HC's 2009 ruling, the Centre filed a review plea which was rejected in early 2014.

Even though Sonia Gandhi hoped that Parliament would ‘uphold the constitutional guarantee of life and liberty to all citizens of India’, the UPA showed no desire to bring in legislation.

Kapil Sibal, who was the UPA Law Minister in 2013, told Indian Express that a law couldn’t be enacted as there was no consensus in Parliament.

On Thursday, Sibal hailed the verdict. When asked why UPA II didn’t bring a law as suggested by SC, he told Indian Express: “In order to bring a law, you have to develop consensus. Laws are not thrust down people’s throats. And to build consensus is not easy especially in an issue (like) this …which has huge ramifications on the society. So while some were very much in favour of doing away with 377, not everybody was on board.”

He admitted that there was a lack of consensus in the party and the government. He added: "In any case, there was an appeal pending in the Supreme Court. So, we thought that it is best that an appeal would be taken up and the court takes a decision based on the provisions of the Constitution. I am very happy that the court has now taken a position."

Cong hails decision

The Congress on Thursday hailed as "momentous" the Supreme Court verdict decriminalising consensual gay sex and termed it an important step forward towards a liberal and tolerant society.

Congress chief spokesperson Randeep Surjewala said the age-old colonial law was an anachronism in today's modern times and the verdict restores the fundamental rights and negates discrimination based on sexual orientation.

"Supreme Court verdict on Section 377 is momentous. An age-old colonial law, that was an anachronism in today's modern times, ends restoring the fundamental rights and negating discrimination based on sexual orientation. It's an important step forward towards a liberal, tolerant society," he said on Twitter.

On its official Twitter handle, the Congress said, "We join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society". 

"We welcome the Supreme Court's landmark verdict. We have always believed that this has been a long time coming and we celebrate it with our friends in the LGBTQAI + community. Equality won today," the party said.

Sharing his "joy and pride" over the verdict, Congress leader Shashi Tharoor said, "It has been a great day for the country and for equality. It has been a historic day and a day of celebration". 

Mahila Congress president Sushmita Dev congratulated the activists and communities that fought for equality and said "love conquers hate".

Former Lok Sabha MP Priya Dutt celebrated the Supreme Court judgement and congratulated the judges on their "progressive verdict", while senior party leader Milind Deora commended the Supreme Court judges on the historic verdict and shared the happiness of "victory" with the people of India. 

Congress leader Sachin Pilot thanked the apex court "for upholding the constitutional values of our country". 

A five-judge constitution bench of the Supreme Court unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the Indian Penal Code (IPC) which criminalises consensual unnatural sex, saying it violated the rights to equality.

The constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 as "irrational, indefensible and manifestly arbitrary". 

With inputs from PTI