NEW DELHI: The Centre on Monday was divided on the issue of abolition of punishment for homosexuality with the Ministry of Home Affairs telling the Delhi High Court that it favours retention of the provision while the Health Ministry is against its enforcement.
"How would you reconcile the contradictory affidavit," a Bench comprising Justices A K Sikri and J R Midha said after going through the affidavits filed by the two ministries adding "the government cannot shy away from the stand taken by it in the affidavit".
Advocate Monica Garg, appearing for the Centre, found herself in a spot when the Bench pointed to the contradiction in the views of the ministries.
"I have earlier written to the government that I would not be able to represent both the ministries but I have not got a reply," Garg submitted adding that for the time being she would represent the Ministry Of Home Affairs which is in favour of penal provision against homosexuals.
The Home Ministry, in its affidavit, said that in Indian context the law was right and should continue as a deterrent for such kind of "immoral" acts.
On the other hand, the affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health, was against enforcement of Section 377 of IPC which has the provision of punishment upto life imprisonment for indulging in unnatural sex.
Enforcement of Section 377 can adversly contribute to pushing the persons suffering from HIV underground which would make such risky sexual practices go unnoticed, the affidavit filed by NACO said.
Pointing out the vulnerability of homosexuality towards HIV infection, NACO further contended that there were around 25 lakh male homosexuals and around eight per cent of them are infected with HIV while in normal people it is only one per cent.
"Men Having Sex with Men are mostly reluctant to reveal same sex behaviour due to fear of law enforcing agencies, pushing the infection underground and making it difficult to access them," the affidavit by NACO said adding around 69 per cent MSM know about preventing infection but only 36 per cent use condoms.
It further proposed softer approach towards these people as the penal provision of section 377 has forced MSM groups to have poor access to condom, healthcare services and safe sex information.
The court was hearing a petition filed by NGO Naz Foundation seeking its direction to declare Section 377 of IPC as "unconstitutional" as it violated a citizen's fundamental right and promoted illegal sex.
"Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation", the NGO contended in its petition which has been taking up the cause of AIDS/HIV victims.