The Supreme Court pulled up the Centre for trying to change the Home Ministry's stand on homosexuality when it submitted on Tuesday that there appeared to be no legal error in the Delhi High Court judgment, which struck down as unconstitutional Section 377 of the Indian Penal Code in so far as it criminalised sex between two consenting adults in private.
Additional Solicitor-General Mohan Jain, appearing for the Health Ministry, told a Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya that the government had decided not to challenge the 2009 High Court judgment de-criminalising homosexuality. He said a Group of Ministers (GoM) comprising the Home Minister, the Law Minister and the Health Minister, at a meeting on July 28, 2009, recommended to the Cabinet that the government submit before the Supreme Court that “there does not appear to be any legal error in the judgment and the Supreme Court may take a final view whether the judgment of the High Court is legally correct or not.” The Cabinet on September 17, 2009 accepted the recommendation.
‘Don't waste court time'
At this, Justice Singhvi told Mr. Jain: “Don't make a mockery of the system. Already ASG P.P. Malhotra argued for the Ministry of Home and his stand remains. Whatever argument has been made before us stands. Three hours were spent. You talk of your Ministry alone. Can you change your stand from court to court? We are not reviewing whether there is an error or no error. It is an appeal. Confine yourself to the four corners of law. You can't waste the time of the court. You can't have a hidden agenda.”
When Mr. Jain tried to argue for the Home Ministry, Justice Singhvi said: “You don't have to argue for the Ministry of Home, which had already addressed us. Tomorrow some one may appear before us and say Mr. Mohan Jain was not authorised to argue. You argue for the Health Ministry.”
Then Mr. Jain said he would file an affidavit [distancing himself from the arguments advanced by Mr. Malhotra for the Home Ministry that homosexuality was immoral.] The court asked the Health Secretary to file a proper affidavit in three days incorporating the GoM recommendations.
The Bench is hearing a batch of petitions challenging the High Court verdict, which read down Section 377 of the IPC to keep consensual adult sex in private out of its ambit.
Mr. Jain also explained the Health Ministry's concerns over risks like HIV infection associated with homosexuality and the need for promoting safe sexual practices.
When Justice Mukhopadhaya asked him to explain the link between Section 377 and the gay community, Mr. Jain said: “Section 377 does not relate to any particular group, we are not examining the issue in that microscopic way. The judgment is not about a particular group but about all adults. It has nothing to do with the gay community or HIV. It does not have any difference between HIV and non-HIV. High-risk groups can also be general sex workers, drug users, etc.”
Justice Singhvi wondered why the government did not, by way of explanation, make an exception to Section 377 exempting the community from the ambit of the law. The government could have done this instead of having a long-drawn debate on AIDS if it thought that in the changed scenario gays should not be subject to prosecution. “It is simple and would not have taken a long time. This has been pending for over two years now.” Arguments will continue on Wednesday.
