A goof-up created by the Law officer representing the Ministry of Home Affairs today ended up revealing a significant shift in the governments view on homosexuality.
A day-long hearing in the Supreme Court saw Additional Solicitor General P P Malhotra,representing the Home Ministry,argue that homosexuality is an unnatural offence the exact line the government took in the Delhi High Court.
In fact,a reference to the records filed by the ministry in the Delhi High Court shows that Malhotra was only dutifully following the then ministrys script. A reply affidavit filed by the ministry on September 4,2003 equates homosexuality with other unnatural offences like rape,beastiality and child sex. In fact,the ministry argues that repealing the provision would harm the social fabric.
The issue whether to retain or not to retain section 377 IPC was considered by the Law Commission of India in its 42nd report and it observed that Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even when adults indulge in it in private, the ministrys reply had said.
The HC verdict in July 2009 had trashed this argument,taking homosexuality out of the purview of the section but retaining its hold on unnatural sex crimes.
But Malhotras adherence to the old script seemed to have rattled the ministry today. It rushed out a press release to contradict him,emphasising the governments neutral position on homosexuality.
This when Malhotra took the better part of the day arguing before a Bench of Justice G S Singhvi and Justice S J Mukhopadhyay against a bunch of appeals filed by anti-gay groups challenging the Delhi High Court verdict.
The law officer led arguments,copiously citing from legal precedents and quoting from expert surveys on how homosexuality leads to the spread of AIDS. During evening,he wound up with an open challenge to test the gay groups contention that Section 377 IPC was a violation of their right to privacy.
Whose privacy is being disturbed? Nobodys privacy is being disturbed. Privacy is not an absolute right and is always subject to restriction. It (homosexuality) is an offence, Malhotra declared in court.
Meanwhile,the ministry,caught aback by news flashes on TV,was clarifying outside that Ministry of Home Affiars has not taken any position on homosexuality as is being reported in the media (television channels).
It explained that there was Cabinet decision taken after the Delhi High Court verdict to not file any appeal against the judgment in the Supreme Court. The Cabinet had then decided,the statement said,to limit its role to only assisting the SC in case any other party goes ahead and challenges the high court decision.
The decision of the Cabinet was that Central Government may not file an appeal against the judgment to the Supreme Court. However,if any other party to the case prefers an appeal,the Attorney General may be requested to assist the Supreme Court to examine the matter and to decide the legal questions involved, the release said.
The AG had given the same submission before the SC in July 2009 when the appeals were being admitted.
On the incident today,the ministry specifically clarified that it had not given any instruction apart from conveying the decision of the Cabinet.
The Union of India is represented by both ministries of home and health in the SC.