The Union government seemed to be in fresh trouble in the homosexuality case in the Supreme Court on Tuesday with the court questioning the Centre for not placing before it “correct” facts about the Cabinet decision on the Delhi High Court’s 2009 verdict decriminalising the gay sex.
A bench of Justices G.S. Singhvi and S.J. Mukhopadhaya told additional solicitor-general Mohan Jain that the Cabinet decision did not say that it had accepted the recommendation of the group of ministers on the issue completely.
The top court said this in the context of the affidavits filed by home secretary R.K. Singh appended on March 1 and health ministry filed on Tuesday.
The bench pointed out that the Cabinet decision was “carefully worded” and it only stated that attorney-general would assist the Supreme Court. Since attorney-general is always available to assist the court, there was nothing special about it. “The impression you (the government) are seeking to convey, is that you are supporting the judgment of the high court, is not correct,” the bench observed.
The Cabinet decision as produced in the affidavit of home secretary said “the Cabinet considered the recommendations of the GOM contained in a note of 12-8-2009 from the ministry of home affairs and decided to request the attorney-general of India to assist the Supreme Court in arriving at an opinion on the correctness of the judgment of the high court of Delhi.”
After additional solicitor general P.P. Malhotra had questioned the HC verdict in his three-and-half hours arguments, was replaced by Jain as the government did not accept Mr Malhtora’s argument.
Mr Jain after taking over the case from Mr Malhtora, had stated that the Cabinet had decided that the “government would not take any stand” against the HC verdict and simply asked the A-G to assist the top court.
The bench told Mr Jain during Tuesday’s proceedings “what you have said is not the Cabinet decision. The Cabinet has taken a decision to assist the court through attorney-general.”
But the affidavit of government stated that the Cabinet had accepted the recommendation of the GOM. Meanwhile, the health ministry in its affidavit furnished details about the population of gays and the data about people affected by HIV/AIDS.
Senior advocate Fali Nariman, appearing for an association of the parents of the LGBT people supported the HC judgement decriminalising homosexuality in the context of the applicability of the provisions of section 377 of IPC to them. Section 377, which defines unnatural sex as a serious offence, provides for maximum punishment of life sentence and minimum of 10 years’ jail term to any person indulging in homosexual relations or unnatural sex.