After much cajoling by the Supreme Court, the Centre finally came out with a 'changed but clear' stand on homosexuality on Wednesday.
The top court with the Attorney-General making a statement that the government has decided not to oppose the 2009 verdict of the Delhi high court liberating 'consenting' gay sex of the ambit of Section 377 of IPC, which otherwise declares it a criminal offence.
“The fact is that the Government of India has not challenged the judgment. They (the government) are of the view that this (the verdict) is perfect and is acceptable. But the fact that the government has accepted it does not mean that the Supreme Court should not decide the issue. I say this with all humility,” Attorney- General G.E. Vahanvati submitted before a bench of Justices G.S. Singhvi and
S.J. Mukhopadhaya.
SC had sought Mr Vahanvati's presence to make the government stand clear on the issue. With the attorney-general making an explicit statement on the 'changed stance' of the government, all the doubts were cleared about the Centre’s 'indecisiveness' on a vital issue like this, which counsel for
gay right groups have described as a human problem.
The doubt about the government’s position on the issue had arisen due to 'contradictory' arguments put forward by its two law officers — P.P. Malhotra and Mohan Jain — with the former assailing the HC verdict and the latter stating that the Centre has taken 'no stand' in the matter but only asked the AG to 'assist' the top court.
Mr Vahanvati admitted that there was a 'communication gap' between home ministry and Mr Malhotra,
who had argued the case in the HC and it eventually led to his sticking to the same stand in the apex court.
The Attorney-General said after having a deep study of the HC verdict, the government became more
'enlightened' of the issue as the high court had dealt only with the right of freedom available to an individual citizen under Articles 13, 14, 15 of the Constitution and read the provisions of Section 377 of
IPC only to that extent not making it applicable to any consenting sex between gays.
Otherwise, the HC has not 'disturbed' the provisions of Section 377 with regard to other sexual offences enumerated in it, Mr Vahanvati argued.
“The high court has opposed section 377 only with regard to Article 13, 14 and 15 of the Constitution,
nothing beyond that,” he said.
SC asked whether the stand taken by the government before the HC was the correct
stand or what it has stated in the two affidavits filed by the ministries of home and health in the SC now was the real stand. Mr Vahanvati replied by saying “when we read the judgement, we learnt more about it (homosexuality)…It was a subsequent enlightenment” that is why the government has not filed any appeal against the verdict.