While the Delhi High Court and later the Supreme Court were hearing arguments on Section 377,the UPA governments I and II chose not to inform the court of its final stand,consistently maintaining a lack of clarity and finality.
Additional solicitor general P P Malhotra,who argued the case in the Delhi High Court on behalf of the home ministry,was shunted out of the case last year when he expressed the same views in the Supreme Court. At a hearing of appeals against the 2009 high court judgment striking down Section 377,Malhotra told the Supreme Court homosexuality was immoral and legalising it would be against the countrys cultural practices. In the high court,too,he had said that in our country,homosexuality is abhorrent and that social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India since,in the western societies,the morality standards are not as high as in India.
Mohan Jain,who replaced Malhotra as counsel for the Centre,told the Supreme Court the high courts judgment was not legally erroneous.
Under UPA-II,various ministries have still not been able to reconcile their differences. What has changed is the emerging view within the government that it should be left to the Supreme Court to decide,with the Centre maintaining a neutral posture.
Incidentally,during UPA-I,the stand of some key ministries was based on the religious beliefs of the ministers and their opinion on how the government stand would go down with the electorate.
Sources in the government,privy to some of the initial discussions when the matter was before the high court,told The Indian Express then home minister Shivraj Patil and law minister Hans Raj Bhardwaj were of the view that any suggestion that the Centre was supportive of the demand to decriminalise Section 377 may not go down well with voters. At other times,some members of the cabinet were arguing whether consensual sex between members of the same sex should be decriminalised. On one side was then health minister Anbumani Ramadoss while Patil,backed by Bhardwaj,stopped the Centre from taking a final view. At a meeting in October 2008,the majority of the cabinet supported retaining Section 377 as it is,with many criticising Ramadoss for his uncalled-for utterances. After the new government came in,law minister M Veerappa Moily first said some sections,including Section 377,were outdated,only to do an about-turn in days,now talking of the need to apply our mind to the issue.
Earlier,at meetings of a group of ministers headed by Shivraj Patil on the 172nd report of the Law Commission on a review of rape laws,which,among various things had recommended deletion of Section 377,ministers had constantly bickered.
Despite meetings among the home,health and law ministers,the differences persisted,even after then law secretary T Kviswanathan told the government it was difficult to find any lacunae in the high court judgment.
Home vs Health
A rather peculiar feature of this case is that completely contradictory affidavits have been filed by two wings of Union of India. The Ministry of Home Affairs sought to justify the retention of Section 377 IPC,whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered HIV/AIDS prevention efforts. The Director (Judicial) in the Ministry of Home Affairs,in his affidavit,seeks to justify the retention of Section 377 IPC on the statute book broadly on the reason that it has been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality. It has been submitted that (deletion) can possibly be misconstrued as providing unfettered licence for homosexuality…. It is clear that the thrust of the resistance to the claim in the petition is founded on the argument of public morality.
National Aids Control Organisation has submitted an affidavit affirmed by the Under Secretary of Ministry of Health and Family Welfare,which thus also represents the views of the ministry… According to the submissions of NACO,those in the High Risk Group are mostly reluctant to reveal same-sex behaviour due to the fear of law enforcement agencies,keeping a large section invisible and unreachable and thereby pushing the cases of (HIV) infection underground making it very difficult for public health workers to access them. Thus NACO reinforces the plea raised by the petitioner for the need to have an enabling environment where the people involved in risky behaviour are encouraged not to conceal information so that they can be provided total access to the services…
(Chief Justice A P Shah and Justice S Muralidhar,Delhi High Court,July 2,2009)