The Centre's embarrassing gaffe in the Supreme Court on Thursday signals one thing clearly — that it will not take a clear and unambiguous position on the issue of decriminalising homosexuality. The Home Ministry's clarification, which distanced itself from the retrograde and irrational positions staked out by the Additional Solicitor General who “unauthorisedly” represented it, is a classic piece of equivocation. It merely reiterates another instance of hedging — the Cabinet decision that the Central government may not file an appeal against the landmark 2009 Delhi High Court judgment, which legalised gay sex between consenting adults. This raises a host of questions. Under whose brief did P.P. Malhotra argue that homosexuality was immoral and posed a risk to public health? More importantly, where exactly does the Centre stand on this issue? Does it subscribe to the Delhi High Court's view that Section 377 of the Indian Penal Code, inasmuch as it criminalises “consensual sexual acts of adults in private” is ultra vires of the Constitution? Or does it hold, as ASG Malhotra argued, that homosexual behaviour is out of tune with the country's cultural practices?
In a way, the inconsistency between the ASG's submission and the Home Ministry's press release is hardly surprising. The Centre has spoken in divergent voices on this issue before. When the petition challenging Section 377 was in the Delhi High Court, the Health Ministry favoured decriminalisation; its views were reflected in the affidavit filed by the National Aids Control Organisation, which argued the Section contributed to HIV infection by impeding the access of gays to safe sex. But the Home Ministry appallingly equated homosexuality with “the crime of widow remarriage,” and the Law Ministry, while distancing itself from the MHA's controversial affidavit, claimed, bewilderingly, that scrapping Section 377 would create “a law and order problem.” Although the former Law Minister Veerappa Moily later boldly described Section 377 as an “absurdity in the present day,” the hopes he raised about the Centre's commitment to scrap the provision vanished with calls that a “wide consensus” was needed — euphemism for avoiding a hard decision. This is exactly what the Centre is trying to do now by saying it has not adopted a view on homosexuality but may request its legal advisors to assist the Supreme Court on the issue. Having surrendered good sense on gay rights in the Delhi High Court, the Centre has, in the Supreme Court, surrendered opinion altogether. This fence sitting must end. The state has no right to regulate or ban love or physical intimacy between consenting adults. Why should it be so hard to say that?