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Govt’s U-turn on gay sex draws SC’s ire

The Centre today favoured decriminalisation of gay sex in Supreme Court, contradicting its earlier stand and drawing the apex court`s ire.



New Delhi: The Centre today favoured
decriminalisation of gay sex in Supreme Court, contradicting
its earlier stand and drawing the apex court`s ire, prompting
it to remark that the government must not make a "mockery" of
the system.

As the proceedings began in the controversial case,
Additional Solicitor General Mohan Jain told the bench that as
per the government decision there is no legal error in the
Delhi High Court verdict which had decriminalised gay sex in
2009.

The stand taken by Jain, who appeared for the Union Health
Ministry, was contrary to the argument by Additional Solicitor
General P P Malhotra, who had appeared for the Ministry of
Home Affairs and had opposed decriminalisation of gay sex.

Taking a strong exception to the change in government`s
stand, the bench of justices G S Singhvi and S J Mukhopadhaya
pulled up the Centre and asked it not to make a mockery of the
system.

"Don`t make (a) mockery of the system. ASG Malhotra has
already argued the case for more than three hours. Don`t waste
the court`s time," the bench said.

"We noted down arguments put forward by the Home Ministry.
So now you tell the stand of your ministry," the bench told
Jain.

It allowed Jain to argue on behalf of the Health Ministry
in support of decriminalisation of gay sex.

The Government during previous hearing of the case on
February 23, had tied itself in knots by first disapproving
decriminalisation of gay sex, terming it as "highly immoral",
but later taking a different line and drawing sharp criticism
from the bench.

Appearing for the Union Home Ministry, ASG P P Malhotra
had argued that gay sex is against social order and th
e Indian
society cannot imitate the practices prevailing abroad.

As media reported the government`s stand, the Home
Ministry quickly distanced itself from the ASG`s stand and
came out with a separate statement amid the ongoing court
proceedings, saying that it has not taken any stand on the
Delhi High Court order decriminalising homosexuality.

The Home Ministry said the matter was considered by the
Cabinet, which had decided that the Central government may not
challenge the High Court`s verdict.

As soon as Malhotra ended his submissions in the court
proceeding, spanning nearly three hours, another ASG Mohan
Jain, told the court that he has been instructed to say that
Centre is not taking any stand on the issue.

Taking strong exceptions to Jain`s last-minute
submissions, the bench said the government has already
advanced its arguments and the court cannot take cognisance of
the instructions given to him.

Malhotra had opposed the Delhi High Court`s order which
had in 2009 decriminalised gay sex as provided in Section 377
of the Indian Penal Code (IPC) and had ruled that the sex
between two consenting adults of same sex in private would not
be an offence.

Section 377 (unnatural offences) of the IPC makes gay sex
a criminal offence entailing a maximum punishable of life
imprisonment.

The Supreme Court had earlier asked the anti-gay rights
groups, challenging legalisation of gay sex, about the law on
homosexuality prevailing in other nations.

The apex court had also asked the anti-gay rights groups
to "broaden the canvas" while opposing the high court`s order
of decriminalising gay sex and not limit their arguments to
only carnal intercourse, since the final verdict on the issue
would have wider implications.

The bench had said homosexuality should be seen in the
context of changing society as many things which were earlier
unacceptable have become acceptable with passage of time,
while referring to recent phenomena like live-in relationship,
single parent and surrogacy.

The apex court is hearing petitions filed by anti-gay
rights activists and also by political, social and religious
organisations who have opposed the high court verdict
decriminalising homosexual behaviour.

The High Court judgement had sparked a controversy and
several political, social and religious outfits have asked the
apex court to give the final verdict on the issue.

Senior BJP leader B P Singhal, who had opposed in the
high court legalisation of gay sex, has challenged the verdict
in the Supreme Court, saying such acts are illegal, immoral
and against ethos of Indian culture.

Religious organisations like All India Muslim Personal
Law Board, Utkal Christian Council and Apostolic Churches
Alliance have also challenged the high court`s order.

Delhi Commission for Protection of Child Right, Tamil
Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal and
yoga guru Ramdev have also opposed the verdict in the apex
court.

PTI

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