18.9.09

The Government lets SC take a call on sec 377 HC judgement

Declining to take a clear-cut stand on the subject of decriminalising homosexuality as per the Delhi High Court ruling, the Cabinet accepted the recommendation of the Ministry of Home Affairs (MHA) that the Centre should neither challenge nor support the July 2 judgment.
The Cabinet decision means that the Centre has now left it to the Supreme Court to decide the "correctness" of the judgment.Information and Broadcasting Minister Ambika Soni said, "The Cabinet decided to ask the Attorney General to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgment of the High Court."
Asked to elaborate, she said it was being left to the Supreme Court to decide if the High Court was "right or not" in decriminalising same-gender sex. It is learnt that the consensus at the Cabinet meeting, chaired by Prime Minister Manmohan Singh, was that the Centre should refrain from taking any stand on the issue as it could lead to controversy.
Aware of the political minefield it could walk into if it openly supports the judgment striking down provisions in Section 377 of the Indian Penal Code that criminalised same-gender,consensual sex among adults, the Cabinet played it safe, only asking Attorney General G Vahanvati to "assist" the Supreme Court on it. Incidentally, Law Minister M Veerappa Moily has already favoured the demand to amend Section 377. The AG's brief would also include informing the court the fact that the Centre was not making its views on the issue of decriminalising same-gender sex doesn't mean that it supports homosexuality.
Home Minister P Chidambaram informed the Cabinet about his discussions with Law Minister Moily and Health Minister Ghulam Nabi Azad.
He apprised the Cabinet about the note submitted by Union Law Secretary T K Vishwanathan. In his note, Vishwanathan had told the government that it was difficult to find any lacunae in the judgment. He had also said that there were no sufficient grounds on the basis of which an appeal could be maintainable in the Supreme Court .At the same time, the MHA is of the view that there "doesn't appear to be any legal error in the judgment".The Cabinet note also points out that the HC had "not struck down the entire Section 377 IPC".
"The HC judgment interprets Section 377 and it only reads down the Section so that it is consistent with Articles 14, 15 and 21 of the Constitution," explained an officer.
The Supreme Court is seized of the matter as some individuals as well as the Delhi Commission for Protection of Child Rights have challenged the High Court judgment.

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