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SC pulls up Centre for being casual on homosexuality issue

'They have taken this case very casually. This practice needs to be condemned and we are going to say it in our judgment,' the bench observed.

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The Supreme Court on Tuesday pulled up the Centre for its casual approach on decriminalisation of homosexuality and also expressed concern over Parliament not discussing such important issues and blaming judiciary for over-reach.

After going through various affidavits of the government filed in the Delhi High Court and the Supreme Court, a bench of justices GS Singhvi and SJ Mukhopadhyay said the Centre has taken this case very casually which needs to be condemned.

"They have taken this case very casually. This practice needs to be condemned and we are going to say it in our judgment," the bench observed.

The bench also said that during the last 60 years Parliament has not discussed such an important issue but they would complain about judicial over-reach when the court takes a decision on such matters.

"The highest legislature doesn't have time to consider these issues. How long will the people of this country wait for the legislature to find time to consider these issues," the bench observed noting that the Law Commission had also recommended deletion of Section 377 of IPC which makes gay sex an offence punishable upto life imprisonment.

The court's remarks came when veteran film maker Shyam Benegal, who is supporting decriminalisation of gay sex, submitted that there are many amendments to be brought in different laws but the government leaves it to the court to decide.

"Government has not been able to bring amendments in the legislations which is long overdue. Industrial dispute Act has not been amended for the last 40-years and the definition of the term industry in the act has become meaningless. Government thinks let the court decide the issues," senior advocate Ashok Desai, appearing for Benegal, said.

The bench then observed, "When the court does something, then they also say that it is a judicial over-reach."

The bench said it is a peculiar case in which the government is taking a neutral stand before the apex court on such an important issue after contesting the matter in the high court.

"We don't know in how many cases they have been neutral. This is one of the peculiar cases where the Centre, which had contested the matter in the high court, is taking a neutral stand."

"The government comes with the stand that they are neutral. Which one is to be accepted, the affidavits filed in the high court or its stand of neutrality in the Supreme Court," the bench observed.

The apex court was hearing petitions by anti-gay rights activists and also by political, social and religious organisations, opposing the high court verdict.

The Delhi High Court had in 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence.

Section 377 (unnatural offences) of the IPC makes gay sex a criminal offence entailing punishment up to life term.

Senior BJP leader BP Singhal has challenged the high court verdict in the Supreme Court saying such acts are illegal, immoral and against the ethos of Indian culture.

Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too have challenged the judgment.

The Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal and yoga guru Ramdev have also opposed the verdict.

The Centre earlier had informed the apex court that there are an estimated 25 lakh gay population and about seven percent (1.75 lakh) of them are HIV-infected.

In its affidavit, filed by the Union health ministry, it said that it is planning to bring 4 lakh high-risk 'men who have sex with men (MSM)' under its AIDS control programme and it has already covered around 2 lakh of them.

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