Government’s flip-flop on gay sex ban

A senior government lawyer Thursday urged the Supreme Court to ban “immoral” gay sex, only to be contradicted by the home ministry which said it had accepted a high court ruling that de-criminalised it.

Additional Solicitor General P.P. Malhotra, appearing for the government told the apex court that “gay sex is highly immoral and against social order and there is high chance of spreading of diseases through such acts”.

He argued that the Indian constitution was “different and our moral and social values are also different from other countries”.

“So we cannot follow them,” he said. This was a dramatic reversal of the government stand outraging activists in the country.

The apex court was hearing a batch of petitions challenging the high court’s July 2, 2009 verdict holding that Section 377, which criminalises gay sex among consenting adults, was a violation of the fundamental rights.

But hours later, the home ministry issued a statement stating the government had not taken any position on banning homosexuality.

It said the government had in fact decided not to file an appeal against the Delhi High Court order on Section 377 that made gay sex punishable by up to 10 years in prison.

“The decision of the cabinet was that central government may not file an appeal against the high court judgment (in) the Supreme Court,” the statement said.

It said the the cabinet had also decided if any other party prefers an appeal, the attorney general may be requested to assist the Supreme Court to examine the matter.

The sudden flip flop created confusion over the gay sex debate in the Supreme Court.

Sources in the home ministry told IANS that there had been some “miscommunication” over the issue and Malhotra, the senior government counsel, was reading an old statement prepared before the 2009 high court judgment.

Malhotra told the bench of Justices G.S. Singhvi and S.J.Mukhopadhaya that Section 377 of the Indian Penal Code should remain on the statute to check cases of child sex abuse and other “unnatural offences”.

“It (sex with same gender) may be a derived right but not a absolute right and was subject to restriction.”.

Malhotra said homosexuality was causing the spread of HIV/AIDS in the country.

The court asked about the “statistical data supporting such a nexus”.

“Why do you attribute a particular act (homosexuality) to HIV,” the bench asked.

The government stand in the court drew flak from the lesbian, gay, bisexual, transgender (LGBT) activists who said the move was “irresponsible and illogical”.

“I think it is irresponsible, illogical to come up with such opinions at this time. The ministry is ignoring what the Delhi High Court bench had observed three years ago when it decriminalised homosexuality,” Mohnish Malhotra, a gay rights activist and one of the organisers of the annual gay pride march here, told IANS.