MHA affidavit supports gay sex decriminalisation

Last Updated: Sunday, March 4, 2012 - 11:51

New Delhi: The Union Home Ministry has filed
a formal affidavit in the Supreme Court, coming in support of
decriminalisation of gay sex among consenting adults saying
the decision was taken as early as July 2009 by a GoM
comprising Union ministers of Home, Law and Family Welfare.

The affidavit comes in the backdrop of the rebuke of the
Centre by the apex court on February 28 and earlier hearing
for taking contrary stance on the issue.

On February 28, a bench of Justices GS Singhvi and SJ
Mukhopadhaya told Additional Solicitor General Mohan Jain not
to make "mockery" of the system by adopting contradicting
stance on the issue after the counsel submitted that there is
"no legal error" in the Delhi High Court verdict which had
decriminalised gay sex in 2009.

The stand taken by Jain, appearing for the Union Health
Ministry, was contrary to the argument by Additional Solicitor
General PP Malhotra, who had opposed decriminalisation of gay
sex on behalf of the Home Ministry.

In an affidavit filed by Union Home Secretary RK Singh
it was submitted that the GoM in their meeting held on July
28, 2009 recommended to the Cabinet that the following view
may be submitted by the Government before the Supreme Court.

"The high court has not struck down the entire Section
377 IPC. The high court has interpreted Section 377 IPC and
read down this section so that the section is consistent with
Articles 14, I 5 and 2 I of the Constitution.

"The correctness of the judgement has been questioned in
an appeal before the Supreme Court.

"The government may submit before the Supreme Court that
there does not appear to be any legal error in the judgement
and the Supreme Court may take a final view `whether the
judgement of the high court is legally correct or not`," the
affidavit said.

According to the Home Ministry, the Cabinet accepted the
recommendation made by the GoM and in its meeting held on July
1, 2009 and decided "to request the Attorney General of India
to assist the Supreme Court in arriving at an opinion on the
correctness of the judgement of the High Court of Delhi".

"The decision of the Cabinet was conveyed to the Attorney
General for India on September 29, 2009.

"It may be noted that Ministry of Home Affairs has not
filed any appeal against the judgement of the honourable high
court," the affidavit added.

At the last hearing taking a strong exception to the
change in government`s stand, the bench had directed the
Centre to file affidavit within three days explaining the
decision taken by the Cabinet on the issue.

PTI



First Published: Sunday, March 4, 2012 - 11:40

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