MHA affidavit in SC supports decriminalisation of gay sex

 The Union Home Ministry has filed a formal affidavit in the Supreme Court, coming in support of decriminalisation of gay sex among consenting adults saying the decision was taken as early as July 2009 by a GoM comprising Union ministers of Home, Law and Family Welfare.

The affidavit comes in the backdrop of the rebuke of the Centre by the apex court on February 28 and earlier hearing for taking contrary stance on the issue.

On February 28, a bench of Justices G S Singhvi and S J Mukhopadhaya told Additional Solicitor General Mohan Jain not to make "mockery" of the system by adopting contradicting stance on the issue after the counsel submitted that there is "no legal error" in the Delhi High Court verdict which had decriminalised gay sex in 2009.
The stand taken by Jain, appearing for the Union Health Ministry, was contrary to the argument by Additional Solicitor General P P Malhotra, who had opposed decriminalisation of gay sex on behalf of the Home Ministry.

In an affidavit filed by Union Home Secretary R K Singh it was submitted that the GoM in their meeting held on July 28, 2009 recommended to the Cabinet that the following view may be submitted by the Government before the Supreme Court.

"The high court has not struck down the entire Section 377 IPC. The high court has interpreted Section 377 IPC and read down this section so that the section is consistent with Articles 14, I 5 and 2 I of the Constitution.

"The correctness of the judgement has been questioned in an appeal before the Supreme Court.

"The government may submit before the Supreme Court that there does not appear to be any legal error in the judgement and the Supreme Court may take a final view 'whether the judgement of the high court is legally correct or not'," the affidavit said.According to the Home Ministry, the Cabinet accepted the recommendation made by the GoM and in its meeting held on July 1, 2009 and decided "to request the Attorney General of India to assist the Supreme Court in arriving at an opinion on the correctness of the judgement of the High Court of Delhi".

"The decision of the Cabinet was conveyed to the Attorney General for India on September 29, 2009.

"It may be noted that Ministry of Home Affairs has not filed any appeal against the judgement of the honourable high court," the affidavit added.

At the last hearing taking a strong exception to the change in government's stand, the bench had directed the Centre to file affidavit within three days explaining the decision taken by the Cabinet on the issue.