On 25 June, Congress MP Shashi Tharoor posted a tweet saying that even after decriminalisation of homosexuality by the Supreme Court, there are thousands of cases still pending in courts under section 377. He alleged this by quoting the answer given by the home ministry to his question on the number of cases under section 377 of IPC.
However, Tharoor’s assertion that thousands of cases under this section at present is wrong and misleading, which can be proved by a casual reading of the answer given by the ministry.
Despite the decriminalisation of same-sex relations by the Supreme Court, there are still thousands of cases pending under Sec 377, Govt abswer to my Parliament question reveals @NazFoundation pic.twitter.com/VafmtspW15
— Shashi Tharoor (@ShashiTharoor) June 25, 2019
Shashi Tharoor had asked the Ministry Home Affairs whether it is aware that the Supreme Court had read down section 377 and made all sexual acts between two consenting adults is legal. He also wanted to know the number of cases of sexual cases between two consenting adults pending at trial, appellate and revisional stages in various courts in the country as on 6th September 2018. He had also sought a state-wise breakup of this data, and whether the ministry had urged the states to withdraw cases under section 377 involving consensual sex between adults.
The written reply [pdf] to the question was furnished by G Kishan Reddy, the minister of state in the home ministry. The reply says that the Supreme Court has decriminalised cases under section 377 for the consensual sexual relationship between adults. On the subject of withdrawing cases, the ministry says that it is for the states and union territories to consider withdrawing the cases as per law.
The ministry then provided the data of pending cases under section 377. The reply says that the National Crime Record Bureau (NCRB) compiles and publishes crime statistics in its publication named ‘Crime in India’. The ministry also clearly mentions that state-wise detail of cases under this section pending trial is available till the year 2016 only. The ministry annexed a list of state-wise pending cases under section 377 during 2014-16.
The home ministry has made it clear that it does not have up to date data in this regard, and it has data only till 2016. The Supreme Court order decriminalising consensual adult homosexuality came on 6th September 2018, which means the data provided by the home ministry belongs to a period where it was still a crime according to the law in India.
Moreover, the data for 2014-16 does not give a break-up of consensual adult relationships and other relations which are still crimes. Homosexual relation with minors, non-consensual sexual act (rape) and bestiality (sexual activity with non-human animals) are still crimes under section 377, and this means that that number provided by the government includes all those numbers too, not just consensual relations.
In an attempt to show the Modi government in poor light, Shashi Tharoor deliberately hides these important factors and accuses that thousands of cases of still pending under section 377 at present. The fact is, at present no data is available on the number of pending cases after the Supreme Court order, hence the Congress leader is clearly lying.
