5 min readNew DelhiJan 20, 2023 09:18 PM IST
First published on: Jan 20, 2023 at 03:24 PM IST
As the BJP nears almost a decade of its rule at the Centre, the focus is back on the party’s stance on decriminalising homosexuality after the Supreme Court Collegium on Thursday rejected the Union government’s objections to appointing senior advocate Saurabh Kirpal as the judge of the Delhi High Court.
The government objected to Kirpal’s appointment because of his sexual orientation — if appointed, he could be India’s first openly gay judge — and because his partner is a citizen of Switzerland.
In 2013, the Supreme Court reversed the Delhi High Court’s verdict in Suresh Koushal vs Union of India, which said that Section 377 of the Indian Penal Code cannot punish sex between two consenting adults, reasoning that Parliament can decriminalise homosexuality but not the court.
In the aftermath of that judgment, Rajnath Singh, now the Defence Minister, gave an interview on December 15, 2013, in which he said, “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”
Current Uttar Pradesh Chief Minister Yogi Adityanath had also welcomed the 2013 verdict. Adityanath, at the time a Lok Sabha MP, told reporters outside Parliament that he was opposed to any move to decriminalise homosexuality.
But, in a tweet in 2013, Piyush Goyal, now a Union minister, had spoken in favour of decriminalisation. “There’s nothing ‘unnatural’ in these relationships and I hope the subject is reviewed/law amended at the earliest,” he tweeted during an interaction with some Twitter users.
Around that time, a few BJP leaders such as the late Sushma Swaraj did not explicitly state their public position on Section 377. Swaraj, who was the Minister of External Affairs, said she would clarify her stand only after the government submits its proposal and frames laws on the matter. “The Supreme Court has also said the Parliament can legislate on this issue. Government can call an all-party meeting and we will tell our view there on the issue after seeing the government proposal,” Swaraj told reporters in New Delhi in 2013.
The late Arun Jaitley, in 2015, said at the Times LitFest that the 2013 decision of the Supreme Court needed reconsideration as it adversely affected millions of people in India.
In 2018, a five-judge Constitution Bench of the Supreme Court, led by then Chief Justice of India (CJI) Dipak Misra, struck down Section 377 as “arbitrary”, “fallacious”, and “retrograde”. During the proceedings before the court, then Additional Solicitor General (ASG) Tushar Mehta had said the Union government would not contest the batch of petitions challenging Section 377 as far as it relates to consensual sex between two adults.
“Please do not say anything that may be construed for any object that your lordships did not intend,” Mehta requested the Bench.
The BJP-led government said it would leave the decision to “the wisdom of the court” but urged it not to decide on related rights of the LGBTQ community such as marriage.
The Central government also added that the decision required a detailed counter affidavit to be filed after proper consultations. Following this, in July 2018, the Centre filed its affidavit through the Ministry of Home Affairs, which said, “I respectfully submit that in the event this Hon’ble Court is pleased to declare Section 377 viz. ‘consensual acts of adults in private’, to be unconstitutional, no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.”
The affidavit was criticised as an attempt to “walk a tightrope” between the evolving public opinion and the BJP’s main support base, including but not limited to the Rashtriya Swayamsevak Sangh (RSS).
The affidavit also affirmed that as far as the constitutional validity of Section 377 to the extent of “consensual acts of adults in private” was concerned, the Union government would leave the said question to the wisdom of the court.
More recently, in November and December last year, the Supreme Court, while hearing a plea, asked the Modi government to clarify its stand on the legalisation of same-sex marriage. Earlier this month, the court transferred to itself the batch of petitions seeking the legalisation of same-sex marriage that are pending before various High Courts. The matter will be heard next on March 13, following which the government’s stand is expected to be clearer.
The government has objected to Saurabh Kirpal’s appointment as Delhi HC judge because of his sexual orientation — if appointed, he could be India’s first openly gay judge — and because his partner is a citizen of Switzerland. (Twitter/@CasaAsia) 
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