Sec 377 should not be misused against gays: Moily

Apprehending misuse of Section 377 of the Indian Penal Code against homosexuals in the future, Law Minister Veerappa Moily has said the law should not become an instrument of exploitation by authorities.
    
Moily while admitting that the anti-gay law had been misused in the past, complimented the Delhi High Court for a "well-research, well-documented, well-argued" judgement decriminalising homosexuality.
    
"If it has been misused earlier, it can be misused in future as well. Any law should not be used as an instrument of exploitation, harassment or allow the authority to misuse it. This is one such provision that has a tendency of misuse
and exploitation, and has been misused," Moily told Karan Thapar in CNN-IBN's Devil's Advocate programme.
    
"One thing must go to the credit of the Delhi High Court judgement -- It is well-documented, well-researched, well-argued. I must tell the judges...the subject may be difficult, but at the same time this is one judgement, which has really stood out in the judicial annals of this country," he said.
    
Pointing out that several laws enacted in the pre-Independence British Raj contradicted the Constitution and may not stand scrutiny, he said, adding that such

laws include some sections of the IPC and the Evidence Act. 
    
"We have a Constitution -- many a times the Constitution runs parallel to many laws which were enacted earlier to the
Constitution coming into force. This includes many provisions including some of the sections under the IPC or the Evidence
Act," Moily said. "Many of these things (laws), if put to acid test of the Constitution, they may not stand up to the scrutiny. This is the apprehension," he added.
    
The Law Minister said either the Constitution makers did not anticipate this situation or a review of the laws or the
Constitution should have taken place for properly synchronising the two.
    
On reasons for the government not asking for a stay of the Delhi HC judgement before the Supreme Court, Moily said
it would have been "preposterous", as it was an important question of law relation to Constitutional rights of liberty
and privacy. "They (HC) have given a judgement. As against that, obtaining a stay may be sometimes preposterous, unless we have a final verdict from the Supreme Court," he said. There would occasions when the government would not seek to reverse a judgement, he said, adding that the Supreme Court or the Judiciary have rights to lay down the law.