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As the Supreme Court said parliament was the forum to decide the desirability of retaining Section 377 of the Indian Penal Code, the government Wednesday sought to disassociate itself from Additional Solicitor General P.P. Malhotra’s controversial remark that homosexuality was immoral.

Attorney General G. Vahanvati told an apex court bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhaya that there was a miscommunication between the home ministry and Malhotra and taht the position articulated by him was not that of the government.

When the court pointed out that this was precisely the stand the government took on the issue in the Delhi High Court, Vahanvati said: “We live and learn.”

Vahanvati appeared before the bench after being asked Tuesday to assist it in hearing a batch of petitions challenging a Delhi High Court verdict decriminalizing consensual sex between adults of the same gender.

He told the court that the government had decided against appealing the high court order partially striking down Section 377 IPC.

In the course of the hearing of a batch of petitions challenging a Delhi High Court verdict decriminalizing consensual sex between adults of the same gender, the court observed that parliament was the more appropriate forum for deciding the desirability of having a penal offence on the statute book as parliament reflects the will of the people.

However, the court said that it was duty bound to decide the legal dispute raised before it.

Responding to the court’s observation, Vahanvati told the court that “perhaps the reason that the matter has so far not been deliberated in parliament is because there has not been sufficient debate in the society to encourage their representatives to take up the issue in parliament”.

Vahanvati, who will make his submissions Thursday, has been asked by the court to address it with regards to the interpretation of the word ‘carnal intercourse against the order of the nature’ — in the light of the definition of sexual intercourse dealt with in Section 375 and Section 376 of the Indian Penal Code.

The court also asked Vahanvati to assist it regarding the issue whether certain sexual acts between heterosexual couples married or unmarried would fall within the scope of Section 377.

Appearing for Nivedita Menon and other academics, senior counsel Sidharth Luthra told the court that the genesis of Section 377 were rooted in Christianity and thus had no place in a constitutional democracy which considers secularism as the basic part of the constitution.

Luthra told the court that British rulers who never believed that their empire would break up one day took this provision of law to every country they ruled including in Africa.

The senior counsel told the court: “In 1553, Henry VIII – to break the link between the English Church and Rome – revised the common law to introduce these ecclesiastical crimes into the common law codes.”



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