Top court snubs govt's gay flip-flop

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By OUR LEGAL CORRESPONDENT
  • Published 29.02.12
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New Delhi, Feb. 28: The Supreme Court today snubbed the Centre for its persistently ambiguous stand on a case crucial to gay rights, refusing to let it shift positions and disown a law officer’s earlier statement that homosexuality was “immoral” and HIV led to homosexuality.

“Tomorrow, another law officer will come and say what you say is wrong,” a two-judge bench said, asking the government to take the matter “seriously” and not “waste” the court’s time. It allowed the Centre three days to give its stand in writing.

The development highlights the differences within the government on the issue: the legality of the July 2009 Delhi High Court verdict that took all consensual and private adult sex out of the ambit of a law that criminalises sex “against the order of nature”.

The health ministry wants homosexuality legalised but the home ministry has avoided taking a stand through the two years that the apex court has been hearing some religious groups’ and citizens’ appeals against the high court order.

The Centre as a whole is fearful of annoying the clerics but doesn’t want to be seen as taking a regressive stand either, and is therefore hoping the court will bail it out by taking a decision.

However, embarrassed by last week’s court statements by additional solicitor-general P.P. Malhotra, who had claimed to represent the home ministry, the government tried to distance itself from them this morning. The court would have none of it.

“Whatever is argued before us is the stand. Can you change your stand from court to court?” Justice G.S. Singhvi told additional solicitor-general Mohan Jain, who was representing the health ministry.

“You talk about your ministry,” he went on. “Malhotra (not seen in court today) devoted three hours to this. Please take it seriously. You can’t waste the time of the court.”

The court then told Jain to file a sworn affidavit in three days expressing the government’s position. “It has to be from a responsible officer. You can’t have a hidden agenda,” the bench said.

Jain had earlier read out from a written brief to show that a group of ministers (health, law and home) had agreed not to contest the high court judgment restricting the ambit of Section 377 of the Indian Penal Code.

He said that on July 28, 2009, they had recommended to the cabinet that no appeal be filed because there “does not appear to be any legal error in the judgment”. The cabinet had accepted the suggestion on September 17, Jain said.

But after the court rap, Jain purported to speak only for the health ministry.

The health ministry had backed NGO Naz Foundation’s claim in the high court that Section 377 had pushed the gay community underground and was thus hampering attempts to check the spread of AIDS.

Jain today cited official figures to show that gays were a high-risk group for HIV/AIDS. However, the bench wasn’t too impressed this time, either.

Justice S.J. Mukhopadhyaya said the case was about Section 377 and not about gays, who were only incidentally affected by the verdict.

“The judgment is not about a particular group but about all adults. It has nothing to do with the gay community or HIV,” he said.

If the government was so concerned about gays, Justice Singhvi then asked, why did it not get a law passed exempting gays from the purview of Section 377 instead of waiting for a court verdict?

“It is simple and would not have taken a long time. This (case) has been pending over two years now,” he said.

After Jain, the various religious outfits took up the argument. H.P. Sharma, lawyer for Vishwa Hindu Parishad leader B.P. Singhal, questioned the locus standi of Naz, which works among HIV patients, to challenge the law.

He alleged that raids on the NGO in Lucknow had unearthed articles and videos through which it promoted perverted sex.

However, when he argued that even the Mahatma considered homosexuality immoral, the bench shrugged it off saying: “Gandhi considered a lot of things immoral, including consumption of alcohol.”