The Supreme Court on Tuesday sought the presence of attorney-general before it on Wednesday to apprise about the 'correct' stand of the Centre in the homosexuality case related to the applicability of Section 377 of the Indian Penal Code to the gay sex, declared as a criminal offence under its provisions.
A bench of Justices G.S. Singhvi and S.J. Mukhopadhaya issued the direction for the presence of attorney-general G.E. Vahanvati in the wake of home secretary’s affidavit, which stated that the Cabinet had authorised the AG to 'assist' the court in the matter.
Earlier, two law officers of the government - P.P. Malhotra and Mohan Jain — had made contradictory statements with the former seeking to set aside the Delhi high court’s 2009 verdict decriminalising homosexuality. The HC had taken consenting gay sex out of the ambit of Section 377 of the IPC.
However, Mr Jain had stated that the government had decided not to take any stand on the issue in the Supreme Court but only had asked the AG to assist the top court in adjudication of the case, being heard on cross appeals against and for the HC verdict.
The government has come under consistent attack form the top court for its 'indecisiveness' in the case as the bench on March 13 had even raised 'doubts' about placing of correct facts about the Union Cabinet’s decision on the issue before the court.
The bench had pointed out to Mr Jain that the Cabinet decision did not say that it had accepted the recommendation of the group of ministers on the issue completely. In this context, the court referred to the affidavits of the home ministry and health ministry.
The bench said the Cabinet decision was 'carefully worded' as it only stated that AG would assist the Supreme Court. As AG was always available to assist the court, there was nothing special about it. But the government had tried to 'create an impression' that it was supporting the HC verdict without saying it in so many words.
The top court had pointed out that on the face of its affidavits, creating such impression by the government in fact was not in correct.