Gay sex is immmoral and a reflection of a pervasive mind and its decriminalisation would lead to moral degradation of society, the Centre today told the Delhi High Court.
NEW DELHI: Gay sex is immmoral and a reflection of a pervasive mind and its decriminalisation would lead to moral degradation of society, the Centre today told the Delhi High Court.
"Homosexuality is a social vice and the state has the power to contain it," the government contended.
"It (decriminalising homosexuality) may create breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society," Additional Solicitor General P P Malhotra contended.
The Centre's stand assumes significance in view of the contradictory stand taken by its two ministries, with the Home Ministry opposing decriminalisation of such acts while the Health Ministry favouring the scrapping of penal provisions which provide a punishment of upto life sentence for homosexual acts.
Appearing before a bench headed by Chief Justice A P Shah, the ASG said that it is crucial to hold such unnatural behaviour (homosexuality) as a criminal offence and its deletion would lead to moral degradation in the society.
Countering the contentions of the gay right activists, the government said that such behaviour is not a natural trait but a reflection of a perverse mind.
Citing a judgement of Orissa court he said that such behaviour was because of perverse mind which needed to be controlled.
But the court was not satisfied with his contention saying that the order was passed 25 years ago and in that case a boy was sexually assaulted.
"We are concerned about homosexual acts among consenting adults in private so that judgement is not relevant here," the bench, also comprising Justice S Muralidhar said.
"Much water has flown under the bridge during last 25 years," the court observed.
"Nothing has flown in India. It has been happening outside," Malhotra said adding that Section 377 is required to contain spread of HIV virus.
"Why do not you ban sexual intercourse (involving HIV infected person) if you want to contain the spread of HIV," the bench observed adding that affidavit filed by the health ministry pointed out that due to Section 377 gays are not revealing their sexual orientation and don't take medical assistance as they would be booked for the offence.
"Enforcement of Section 377 can adversely contribute to pushing persons suffering from HIV underground which would make such risky sexual practises go unnoticed," the Ministry of Health had said in it's affidavit.
"Men Having Sex with Men (MSM) 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 file by NACO on behalf of Health Ministry said said, adding that around 69 per cent MSM know about preventing infection but only 36 per cent use condoms.
Malhotra, however, said that he would rely on the affidavit of the Home Ministry, which said "Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private."
"Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts," Malhotra said while reading the Home Ministry affidavit.
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