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Govt goof up on gay sex issue draws SC ire

Last updated on: February 23, 2012 18:42 IST

Govt goof up on gay sex issue draws SC ire

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In a goof-up, the government on Thursday tied itself in knots in the Supreme Court by first disapproving decriminalisation of gay sex terming it as "highly immoral" and later taking a different line, drawing sharp criticism from the bench.

Appearing for the home ministry, Addition Solicitor General P P Malhotra, argued that gay sex is against social order and the Indian society cannot imitate the practices prevailing in foreign countries.

"Gay sex is highly immoral and against social order and there is high chance of spreading of diseases (like AIDS) through such acts," ASG Malhotra contended before a bench of justices G S Singhvi and S J Mukhopadhaya.

As media reported the government stand, the home ministry quickly distanced itself from the ASG's stand and came out with a statement even as the court proceedings were underway, saying it has not taken any stand on the Delhi high court order decriminalising homosexuality.

"Ministry of Home Affairs has not taken any position on homosexuality...Ministry of Home Affairs has also not given any instruction apart from conveying the decision of the Cabinet," it said.

It said the attorney general has been asked only to assist the apex court. The home ministry said the matter was considered by the Cabinet and the decision of the Cabinet was that central government may not file an appeal against the judgement to the Supreme Court.

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Image: A participant poses during Queer Azaadi parade, an event promoting gay, lesbian, bisexual and transgender rights in Mumbai
Photographs: Danish Siddiqui/Reuters

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As soon as Malhotra ended his submissions after nearly four-hour proceedings, another ASG Mohan Jain, told the court that he has been instructed to say that Centre is not taking any stand on the issue.

Taking strong exception to Jain's last-minute submission, the bench noted that the government has already advanced its arguments and the court cannot take cognisance of the instructions given to him.

"Never make such statements in the court. It will only embarrass you," the bench tersely told the government counsel.

"Union of India is arguing the case. It has advanced its arguments. We will not allow you to make statements that Ministry of Home Affairs has not instructed ASG Malhotra," the bench said, adding, "We are not taking cognisance of your instructions."

When Jain pleaded that government would file an affidavit, the bench shot back saying this was not required as the final hearing in the case had already commenced and he has absolute freedom to assist the court in the matter.

Later, when contacted, Malhotra insisted that he was appearing for the home ministry.

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Photographs: Danish Siddiqui/Reuters

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The court posted the case for further hearing on February 28.

Earlier, Malhotra told the court, "Our Constitution is different and our moral and social values are also different from other countries, so we cannot follow them."

He went on to argue that societal disapproval of gay sex is strong enough reason to criminalise it. It is an offence because it is unnatural, he said.

Indian society disapproves of homosexuality and law cannot run separately from the society, he contended while opposing the Delhi high court's order which had in 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code.

Section 377 (unnatural offences) of the IPC makes gay sex a criminal offence entailing a maximum punishable of life imprisonment.

The Supreme Court had on Wednesday queried anti-gay rights groups, challenging legalisation of gay sex, about the law on homosexuality prevailing in other nations.

The apex court had also asked the anti-gay rights groups to "broaden the canvas" while opposing the high court's order of decriminalising gay sex and not limit their arguments to only carnal intercourse, since the final verdict on the issue would have wider implications.

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Photographs: Danish Siddiqui/Reuters

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The bench had said that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time. The bench had referred to the recent phenomena of live-in relationship, single parent and surrogacy.

The apex court is hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations who have opposed the high court verdict decriminalising homosexual behaviour.

On February 7, 2011 the bench had refused to implead the armed forces in the case.

The high court judgement had sparked a controversy and several political, social and religious outfits have asked the apex court to give the final verdict on the issue.

Senior BJP leader B P Singhal, who had opposed in the high court legalisation of gay sex, has challenged the verdict in the Supreme Court, saying such acts are illegal, immoral and against ethos of Indian culture.

Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance have also challenged the high court's order.

Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal and yoga guru Ramdev have also opposed the verdict in the apex court.

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Photographs: Danish Siddiqui/Reuters

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