Gay sex case: SC angry over Govt's goof-up

New Delhi: The goof-up by the government over hearing on decriminalisation of homosexuality on Thursday has drawn sharp criticism from the Supreme Court. The Home Ministry first told the Supreme Court it opposes the decriminalisation of gay sex in the country by terming it as "highly immoral" and later took a different stand.

The government sources said that the Additional Attorney General read out an earlier stand by the government instead of the latest in the apex court. The Home Ministry later clarified that it had not taken any position on homosexuality.

Appearing for the Home Ministry, Addition Solicitor General PP Malhotra, argued that gay sex is against social order and the Indian society cannot imitate the practices prevailing in foreign countries.

The Home Ministry quickly distanced itself from the ASG's stand and came out with a statement even as the court proceedings were underway, saying it has not taken any stand on the Delhi high Court order decriminalising homosexuality.

The Delhi High Court had in 2009 passed a landmark judgement decriminalising section 377 of the Indian Penal Code that deals with sexual acts in private between consenting adults. The archaic law was framed in the 19th century by the British.

In 2001, a NGO filed a PIL in the High Court seeking repeal of Sec 377.

"Gay sex is highly immoral and against social order and there is high chance of spreading of diseases(like AIDS) through such acts," ASG Malhotra contended before a bench of justices GS Singhvi and SJ Mukhopadhaya.

Media reports said that the Attorney General has been asked only to assist the apex court. The Home Ministry said the matter was considered by the Cabinet and the decision of the Cabinet was that Central Government may not file an appeal against the judgement to the Supreme Court.

As soon as Malhotra ended his submissions after nearly four-hour proceedings, 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 exception to Jain's last-minute submission, the bench noted that the government has already advanced its arguments and the court cannot take cognizance of the instructions given to him.

When Jain pleaded that Government would file an affidavit, the bench shot back saying this was not required as the final hearing in the case had already commenced and he has absolute freedom to assist the court in the matter.

Later, when contacted, Malhotra insisted that he was appearing for the Home Ministry.

The court posted the case for further hearing on February 28.

With additional information from PTI

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