NEW DELHI: The Centre suffered a huge embarrassment in the Supreme Court on Thursday when its counsel termed homosexuality as immoral, disregarding the decision of the Union Cabinet not to oppose the Delhi High Court's verdict on Section 377 of Indian Penal Code decriminalizing consensual sex among gay adults.

Appearing in the hearing on a petition challenging the HC order which decriminalized Section 377 and was celebrated as a major triumph by gay activists and liberal advocacy groups, additional solicitor general P P Malhotra launched into a sharp attack on homosexuality, calling it immoral.

Asked to explain by a bench of Justices G S Singhvi and S J Mukhopadhaya, Malhotra said, "It is against the order of nature. The order of nature is that a man's genital is meant to be inserted in the female's biological genital. But if it is to be inserted in another man's organ meant for excretion of waste, will it be proper?"

Asked who decided what was moral and immoral when the legislature had not provided a proper comment, Malhotra said, "Homosexuality is highly immoral. How can society tolerate it?"

Malhotra, who had appeared before Delhi HC to oppose the plea to decriminalize Section 377 with regard to consensual gay sex on grounds that it would open the floodgates for child abuse, relied on the very same affidavit as he carried on for three hours with his intense pitch, provoking gasps of despair among gay rights activists and others.

Even hours after the home ministry clarified that the ASG read out a wrong affidavit before the apex court, Malhotra continued to read details in the affidavit filed before the Delhi HC opposing any dilution of Section 377, saying Indian society still considered homosexuality to be an immoral act.

Eventually, in an unusual intervention, fellow additional solicitor general Mohan Jain got up to tell the court that Malhotra's pitch should not be taken as reflecting the Centre's stand. Jain said he also represented the ministry of home affairs, and that the Centre had taken no stand on the issue.

Jain sought to drive home the point by emphasizing that he had been told by the attorney general that the Centre would maintain complete neutrality during the hearing, limiting its role to assisting the court.

Ministry of home affairs also joined the damage control exercise, clarifying that Malhotra acted on his own in opposing the HC order, and that the ministry had taken no position on the issue. In a statement, it recalled the decision of the Cabinet not to appeal the Delhi HC order which attracted criticism from many. "The decision of the Cabinet was that central government may not file an appeal against the judgment to the Supreme Court; however, if any other party to the case prefers an appeal, the attorney general may be requested to assist the SC to examine the matter and to decide the legal questions involved."

It further said, "MHA conveyed this decision to the attorney general, MHA has not taken any position on homosexuality and has not given any instruction apart from conveying the decision of the Cabinet."

Centre's neutrality stems from its reluctance to take a stand on a divisive issue. While the Delhi HC judgment has been welcomed as a 'new deal' for the LGBT community, their advocates as well as liberals, gay sex remains taboo for vast swathes of society whom government may not wish to offend. Opinion is split in the Union Cabinet as well.

At loss to comprehend diverse arguments from the Union government, the bench wondered what was going on. It asked Jain to take proper instructions and inform the court by Tuesday. When Jain wanted to file an affidavit, the court said there was no need of an affidavit in the middle of final hearing but the ASG was welcome to assist the court.

Before Malhotra, senior advocate Amarendra Saran appeared for Delhi Commission for Protection of Child Rights (DCPCR) and argued that behaviour and sexual orientation of people in society may vary but there was no instance before the HC about Section 377 being abused to harass a group called "homosexuals".

"Only a single instance of harassment was cited and on that basis the HC re-wrote Section 377. The HC was also wrong in assuming that Article 15 of the Constitution barred discrimination on the ground of sexual orientation of people when in reality the Constitution has barred discrimination on the ground of gender but allowing special provisions for women," he said.