Centre gives silent consent to gay law

An activist at a gay rights parade

New Delhi, Sept. 17: The Centre has lifted its objections to legalising consensual adult gay sex without explicitly saying so, leaving the decision to the Supreme Court.

A cabinet meeting today decided not to take a position on the sensitive subject but to “assist” the apex court judge the “correctness” of Delhi High Court’s July 2 verdict decriminalising all consensual adult sex done in private, including gay sex.

Sources told The Telegraph the cabinet discussed the report of a group of ministers (GoM) and, in principle, decided to do away with Section 377 of the Indian Penal Code, which criminalises adult consensual sex “against the order of nature”.

However, it decided against taking a stand apparently to avoid angering religious leaders who have moved the apex court against the high court verdict, the sources said.

Information and broadcasting minister Ambika Soni told reporters: “The cabinet considered the report of the group of ministers and decided to ask the attorney-general to assist the Supreme Court in all manner possible to arrive at an opinion on the correctness of the high court judgment.”

The first UPA government had opposed scrapping Section 377 in the high court on the ground that the law covered sexual abuse of children too. But in the Supreme Court, the second UPA government had opposed a stay on the high court verdict.

The apex court had then declined to order a stay, saying it would wait for the Centre’s response.

The Centre then formed the GoM with home minister P. Chidambaram, health minister Ghulam Nabi Azad and law minister Veerappa Moily. The GoM, however, reserved its comments and put the ball in the Prime Minister’s court.

Sources said the Centre would have supported the high court judgment but for advice from certain quarters, such as urban development minister Jaipal Reddy, to avoid controversy.

In the high court, the home ministry of Shivraj Patil had opposed a petition by NGO Naz Foundation to take gay sex out of the ambit of Section 377. Neither did the law ministry of H.R. Bharadwaj want to tamper with the 1860 law, and only the health ministry of Anbumani Ramadoss felt a change in the law was necessary to bring gays out in the open for a better fight against HIV/AIDS.

However, days before the high court ruled that Section 377 violated constitutional rights, the new home and law ministers, Chidambaram and Moily, made pro-gay right noises. But they later appeared to back off after religious leaders protested the judgment.

Sources, however, said all three ministers were in favour of decriminalising adult and consensual gay sex, with at least two of them saying the current law was “retrograde” and that “we need to change with the times”.

The apex court is hearing a bunch of petitions against the high court verdict, filed by religious bodies, an astrologer, a yoga guru and the Delhi Commission for the Protection of Child Rights. The last, a statutory and autonomous body, has revived the old home ministry argument that scrapping Section 377 would lead to an increase in child molestation.