The government was in agreement with the 2009 Delhi high court judgment which legalised sexual activities between consenting adults of same sex in private, but shied away from taking a decisive stand due to lack of political unanimity and opposition from religious groups.
Internal communication between the ministries of home, health and law show that the government had actually praised the judgment.
“Since the Delhi HC has not struck down the entire Section 377 of the Indian Penal Code as unconstitutional, and has confined the operation of its judgment only to private consensual acts between consulting adults in private, it will be difficult for the government to question the judgment before the Supreme Court,” the three ministries had concluded in their note to the cabinet.
It was based on the opinion of the then law secretary TK Viswanathan, who had informed Union ministers P Chidambaram, Ghulam Nabi Azad and M Veerappa Moily that “individual rights and liberties have been phenomenally expanded by the courts and have been propelled to great heights and the Delhi HC judgment was a step further in this direction”.
The three ministers, who had been asked by Prime Minister Manmohan Singh to examine the issue, concluded that the government should amend the IPC to decriminalise adult gay consensual sex in private.
The move was shelved, however, after religious groups questioned the judgment and asked the government to appeal against it in the Supreme Court.
The government stuck to its stand of not challenging the high court verdict, but played it safe by telling the Supreme Court that it will abide by its final decision.