Irritated by the government’s contradictory and unscientic stand on the issue of homosexuality, the Delhi high court told the government that the homosexual trait in a human being cannot be termed a “disease’’ and objected to the contention that if legalised, homosexuality would bring “devastation’’ to society.“Show us one report which says that it is a disease. A WHO paper says that it is not a disease but you are describing it as a disease. It is an accepted fact that it is a main vehicle that causes (AIDS) disease but it is not a disease in itself,’’ a bench headed by Chief Justice A P Shah ruled in response to additional solicitor general P P Malhotra’s harping on the point that homosexuality was a disease that is responsible for the spread of AIDS in India. “AIDS is already spreading in the country and if gay sex is legalised then people on the street would start indulging in such practises saying that the high court has given approval for it. Legalising it would send a wrong message to our youth,’’ Malhotra maintained, at which HC took strong exception and said the matter (pertaining to legalising gay sex) was still under consideration and the Centre should not make such a submission. The court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults which is an offence. Section 377 of the IPC provides a punishment up to life imprisonment for indulging in gay sex. ontinuing with its opposition, the government described homosexuality as “the most indecent behaviour’’ in society, pointing out that homosexuals comprise just 0.3% of the population and the interest of rest 99.7% population “cannot be compromised’’. “Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country,’’ Malhotra said arguing that an amendment in section 377 would mean subsequent tinkering with marriage and divorce laws of each community as all have sodomy as a ground for divorce. The ASG claimed even section 375, which pertains to rape, would need an amendment to change definition of “consent’’. “Our constitution does not talk about sexual orientation. We cannot impose other countries’ constitutions on us. Our moral and ethical values are different,’’ the ASG said concluding the Centre’s arguments. Govt’s fancy claims, court’s reality check Excerpts of the strained logic used by the government during the PIL hearings in a bid to retain the Victorian vintage of section 377 and the court’s pointed efforts to make it see reason.
Govt: Right to health of few persons cannot supersede right to health of society. There has to be a balance and it is for this purpose that Section 377 is there...Indian society strongly disapproves of homosexuality and it’s enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.
HC: What is that compelling State interest to continue with such a provision like Section 377 (carrying a punishment of up to life sentence)? Such people suffer from indignity and discrimination in society. If there is a stringent law, do you expect MSMs (man having sex with man) would come forward for their treatment of HIV? Gays are living under constant fear of being prosecuted.
Govt: Gay sex is immmoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society...Homosexuality is a social vice and the state has the power to contain it. If it is allowed then evils of AIDS and HIV would spread and harm the people. It would degrade moral values of society.
Govt: Gay sex is against the order of the nature. The state has to take the help of the law to maintain public morality.
HC: There is no doubt gays are a high-risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it.
Govt: Legalising homosexuality would further divide the country....it will send a wrong signal to youth of our country.
HC: These are not arguments but comments on us. You are saying that we are dividing the nation by saying they belong to minority group and then you are also saying that we are encouraging such practises!... Sexual minority means a group of people having different sexual preferences.
Govt: No act of Parliament can be struck down due to an affidavit or a minister’s statement. Since Parliament passed a law criminalising homosexuality, it represented the will of the people of this country.
HC: It’s a strange situation. Your first affidavit (home ministry’s) is silent. There is not a single word on what you are saying while other affidavit (health ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients.On the government’s claim that legalising homosexuality would lead to spread of AIDS, the court said, “Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to the spread of HIV....Place some authentic study like one backed by the UN maybe.’’ On the government citing a Biblical research paper, the HC said, “We should not accept religious literature... In a secular country how can a government rely on a report which says certain races contribute more to homosexuality? Is the Union of India supporting a document which does racial profiling?’’