NEW DELHI: The Delhi High Court on Monday said that homosexual trait cannot be said to be a disease and objected to the government's contention describing it as an ailment which, if legalised, would bring "devastation".
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 itself," a Bench headed by Chief Justice A P Shah said.
The Court's observation came when Additional Solicitor General P P Malhotra, appearing for the Centre, contended that homosexuality is a disease which is responsible for the spread of AIDS in the country.
"The 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," Malhotra said.
The Bench, also comprising Justice S Muralidhar, however, took strong exception to the government's contention and said the matter (pertaining to legalising gay sex) is 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, at present, is an offence.
Section 377 of Indian Penal Code provides a punishment upto life imprisonment for indulging in gay sex.
Describing homosexuality as "the most indecent behaviour" in society, the Centre submitted that homosexuals comprise only 0.3 per cent of the population and the right of rest 99.7 per cent population cannot be compromised for them.
"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 adding that allowing gay sex would pose a health hazard to society.
He countered the gay rights activists' contention who had earlier pleaded that gay sex should be legalised in the country as many countries in Asia and Europe have done so.
"Our constitution does not talk about sexual orientation. We cannot impose other countries' constitution on us. Our moral and ethical values are different," the ASG said while concluding Centre's arguments.
Senior BJP leader B P Singhal, who is opposing decriminalisation of gay sex, was more blunt in his view against such behaviour and described it as an "evil" exported from western countries.
"If the court allows such acts then it would spread men prostitution and the epidemic of AIDS would further spread. We would no longer be a country called India if Section 377 is removed and such behaviour (gay sex) is allowed," Advocate H V Sharma appearing for the political leader said.
The Court, however, instructed him to "stick" to legal issues involved in the case and not to raise political issues.
Earlier, gay rights activists had contended that the government by not decriminalising homosexual acts was infringing upon their fundamental right to equality on the ground of morality.
"The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated," they had contended on Thursday.
The IPC at present holds homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.
"Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex," the activists had said adding that gays in the country don't have full "moral" citizenship and they are being treated as second class citizens.
Earlier, while hearing the case, the High Court had observed that the problem of HIV cannot be solved by curbing gay sex and pulled up the Centre for seeking the retention of penal provisions against homosexuality on this ground.
"Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV," the Court had said when the government contended that homosexuality spreads the disease.
"If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease," the court had said.