India’s Government Tells Supreme Court It Backs Gay Sex Law

 The Centre on Wednesday told theSupreme Court that it has no problem with consensual sex in private between gay adults, embracing the 2009 landmark verdict of theDelhi high court. 

"The government accepts the correctness of the HC decision decriminalizing Section 377 as far as it concerned consensual sex in private between adults," Attorney General G E Vahanvati told a bench of Justices G S Singhvi and S J Mukhopadhaya, which is hearing a bunch of appeals against the July 2, 2009, verdict of the HC. 

Delhi HC had in 2009 ordered decriminalizing gay sex in private between consenting adults that was feted by gay activists and liberals as a breakthrough for the struggle for the recognition of alternative sexuality. 

They should be pleased also with Attorney General's submission since the Centre never opposed the judgment. However, Vahanvati's statement in the SC on Wednesday may appear to mark a shift from passive acquiescence into the HC verdict towards concurrence with it. 

Interestingly, it took an embarrassing message mix-up for the Centre to clarify its position on endorsing the 2009 verdict. 

Vahanvati said lack of communication between the MHA and the law officer led to the confusion and reiteration of the old view before the apex court. This was immediately corrected by filing of an affidavit by the home secretary, he added. 

Giving background view to the bench, the AG said, "A Group of Ministers went through the HC verdict and found that there was no legal error in the judgment. It had recommended non-filing of appeal in Supreme Court. The Union Cabinet accepted the recommendation and did not file any appeal," he said. 

While giving the clarification, the top law officer did not forget to address the court's serious concern about legal ramifications of an important expression - "carnal intercourse against the order of nature" - contained in Section 377. 

Vahanvati said it was an important issue, but the HC did not attempt to fathom the legal width of its play in the personal lives of people contrasting with the changing social ethos and values. "The debate in the HC should have been multi-dimensional," he said. 

The bench agreed and it was possible only in a forum like Parliament where the elected representatives could have broad-based the debate reflecting on the prevailing social values and views of different sections of population. "Why is Parliament, which is best equipped to deal with the issue, not touched the issue of amendment to Section 377?" it asked. 

Vahanvati said it could be because of the divergence of views on this issue. "Some may strongly feel for it while others could be against it. In a multi-cultural society, we may not agree with a certain view expressed by a group but we have to respect all kinds of views," he said. 

dhananjay.mahapatra@timesgroup.com