Sec 377: Centre again ties itself up in knots

Today’s hearing followed an apparent goof-up five days back when Union Home Ministry lawyer and Additional Solicitor General P P Malhotra literally read out from his high court brief for three hours that homosexuality is indeed an “unnatural offence” even as a rattled ministry denied this,saying its position has changed to neutral after the 2009 judgment.

Additional Solicitor General Mohan Jain,who appeared for the government today,ended up following the same course as Malhotra,in between attempts at damage control.

Firstly Jain,who appeared as the sole legal representative for the Union of India,was asked by the Bench as to “how many Union of Indias are here”. The court told Jain to confine his brief to the Health Ministry as Malhotra had already “spent three hours arguing” for Home.

Jain began by submitting that the government found no “legal error” in the HC judgment in the first place. He then went on to march backwards to read out from the Health Ministry’s script from the Delhi High Court days: That “health risks like HIV infection are associated with homosexuality”.

Jain’s arguments were an almost exact replication of a written reply filed in the Delhi High Court by M L Soni,an Under Secretary at Ministry of Health and Family Welfare,National AIDS Control,way back in July 17,2006.

Soni had suggested “reducing sexual partners,being faithful to a single partner,abstaining from casual sex,correct and consistent use of condoms and reinforcing traditional Indian moral values of abstinence and delayed sexual debut till marriage and fidelity among youth and other impressionable groups” as means to reduce spread of HIV.

The Health Ministry had then been against the enforcement of Section 377 on homosexuals,saying “the fear of harassment… leads to sex being hurried,leaving partners without the option to consider or negotiate safer sex practices”.

“But Mr Jain,we are not deciding a case on HIV here,we are only deciding whether Section 377 IPC is constitutional or not,” the court finally intervened. It was the last day of the government’s allotted time for addressing the court on the issue.