Thaindian News

New Delhi, Feb 28 (IANS) The Supreme Court Tuesday rapped the central government for its flip-flop on the homosexuality issue with the union home and health ministries taking divergent positions on the Delhi High Court verdict decriminalising sex between consenting adults.

While Additional Solicitor General P.P. Malhotra appearing for the home ministry argued that homosexuality was immoral, against social order and there is high chance of spreading HIV through such acts, the health ministry took a diametrically opposite position.

In contrast to Malhotra, who had argued against the Delhi High Court judgment for three hours, Additional Solicitor General Mohan Jain, appearing for the health ministry, told the court: “There does not appear to be any legal error in the Delhi High Court judgment and the Supreme Court may take a final view whether the judgment of the high court is legally correct or not correct.”

Irked over the divergent positions of the two ministries, a bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay told Jain: “Don’t make mockery of the system. ASG Malhotra has already argued the case for more than three hours. Don’t waste the court’s time.”

Expressing its displeasure over the flip-flop by the government, the court told Jain that it had noted the home ministry’s position and he could articulate the health ministry’s stand.

Facing the heat, Jain sought two days’ time to file an affidavit stating unambiguously the stand of the government on the high court verdict.

Hours after Malhotra’s plea opposing the Delhi high court judgment was splashed in media Feb 23, the government issued a statement that “the decision of the cabinet was that central government may not file an appeal against the high court judgment (in) the Supreme Court”.

It said 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 Delhi High Court by its July 2, 2009, ruling had held that “Section 377 IPC (Indian Penal Code), insofar it criminalizes the consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provision of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

The high court by its ruling also clarified that by adults it meant everyone above 18 years of age.