How can a top government lawyer appear before a country’s highest court and take a position directly contrary to the government? That is precisely what happened in New Delhi when Additional solicitor-general P P Malhotra, representing India’s home ministry, appeared before the Supreme Court on Thursday and argued that the ban on homosexuality be maintained even as he described gay sex as “immoral” and purveyor of disease.
Malhotra was quoted as saying, "gay sex is highly immoral and against social order and there is high chance of spreading of diseases through such acts." Malhotra’s contention came during the hearing of petitions that call for a reversal of a July, 2009 by the Delhi high court which struck down a 149-year-old British law that holds that homosexuality is “against the order of nature.”
Soon afterward, Malhotra’s bosses in the home ministry issued a statement saying that the government had decided not to challenge the 2009 high court order. The government said it "has not taken any position on homosexuality". The 2009 ruling set off a wave of jubilation among gays and gay rights groups who saw in it India finally casting off a colonial-era anachronism. However, it was greeted by religious and other conservative groups with outrage, some of which translated into the ruling being challenged before the Supreme Court.
It is baffling how Malhotra took a position that the government implies it had no intention of taking. Some news reports speculated that he inadvertently read from an old statement, which is understandable because India has inadvertently retained a repugnant century and half-old law. It is a simple case of every government and parliament since 1947 having forgotten to strike if off the statute books. There is nothing egregious about it other than the fact that you could end up in the slammer for at least a decade because gay sex is a criminal offence under Section 377 of the Indian Penal Code (IPC).
When the high court gave its ruling in July, 2009, I wrote the following. It bears repeating because it saves me some time on a Saturday morning.
A 149-year-old British law that should have been retired with contempt when India became a free nation in 1947 is being finally laid to rest. The Delhi High Court's seminal judgment that Section 377 of the Indian Penal Code (IPC), which criminalized homosexuality, is "unconstitutional and arbitrary" is a coming of age moment for Indian society.
The IPC section, which the colonial British rulers left behind as one of their many legacies, ensured that the gay community, which is sizable by any measure, lived in fear forever. It is extraordinary that successive governments and 14 parliaments since 1947 cavalierly disregarded the existence on India's statute books a law that was breathtaking in its regressive and medieval thinking. It is not surprising that a high court has reversed this travesty. It is surprising that any Indian court took so long to reject what was a flagrant violation of fundamental human rights.
Since the debate goes to the very heart of individual rights and freedoms I am not one bit surprised that all major religious groups have their underwear bunched up in rage. Many Hindu, Muslim, Sikh and Christian groups are outraged at the court's ruling. Since so many competing faiths are outraged one must conclude that the high court has taken an enlightened position on the matter. If "god" has a problem with homosexuality, as the custodians of these faiths claim, then "god" can take a deep breath and bear it. Or better still "god" can go to a different universe.
With the trend set in motion by a high court, India needs to urgently settle this issue once and for all at political, cultural and social levels and make the gay community an intrinsic part of the country's fabric. Let the gays love, marry, squabble, divorce, whatever the way the straight do. I have a vested interest in it because I want those who have made careers out of their sexual preferences to find a more constructive vocation.
