Govt backed one day, opposed the next
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While the Delhi High Court and later the Supreme Court were hearing arguments on Section 377, the UPA governments I and II chose not to inform the court of its final stand, consistently maintaining a lack of clarity and finality.
Additional solicitor general P P Malhotra, who argued the case in the Delhi High Court on behalf of the home ministry, was shunted out of the case last year when he expressed the same views in the Supreme Court. At a hearing of appeals against the 2009 high court judgment striking down Section 377, Malhotra told the Supreme Court homosexuality was immoral and legalising it would be against the country's cultural practices. In the high court, too, he had said that "in our country, homosexuality is abhorrent" and that "social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India since, in the western societies, the morality standards are not as high as in India".
Mohan Jain, who replaced Malhotra as counsel for the Centre, told the Supreme Court the high court's judgment was not legally erroneous.
Under UPA-II, various ministries have still not been able to reconcile their differences. What has changed is the emerging view within the government that it should be left to the Supreme Court to decide, with the Centre maintaining a neutral posture.
Incidentally, during UPA-I, the stand of some key ministries was based on the religious beliefs of the ministers and their opinion on how the government stand would go down with the electorate.
Sources in the government, privy to some of the initial discussions when the matter was before the high court, told The Indian Express then home minister Shivraj Patil and law minister Hans Raj Bhardwaj were of the view that any suggestion that the Centre was supportive of the demand to decriminalise Section 377 may not go down well with voters. At other times, some members of the cabinet were arguing whether consensual sex between members of the same sex should be decriminalised. On one side was then health minister Anbumani Ramadoss while Patil, backed by Bhardwaj, stopped the Centre from taking a final view. At a meeting in October 2008, the majority of the cabinet supported retaining Section 377 as it is, with many criticising Ramadoss for his "uncalled-for utterances". After the new government came in, law minister M Veerappa Moily first said some sections, including Section 377, were outdated, only to do an about-turn in days, now talking of the need to "apply our mind" to the issue.