Locked in an intense litigation over legalising homosexuality in India, the Centre has raised its brows at the judiciary’s power to pass a verdict on the matter.
‘Parliament, not court, should decide what should be law’
NEW DELHI: Locked in an intense litigation over legalising homosexuality in India, the Centre has raised its brows at the judiciary’s power to pass a verdict on the matter.
Judiciary should refrain from passing any judgment on the issue as it might amount to encroaching upon the legislative functions, the Centre said in its reply to the petitions being heard by the Delhi high court.
“The court is not the authority to decide what should be the law or what should not be the law. These are the functions of the Parliament and the will of Parliament is represented by its members,” additional solicitor general PP Malhotra argued in response to a PIL filed by gay rights activists seeking court’s direction for legalising gay sex among consenting adults.
“They (lawmakers) know the will of the people, the difficulties of the people,” Malhotra told a bench of chief justice AP Shah and Justice S Muralidhar.
Judges reserved the verdict on November 7 but allowed parties to submit their written submissions. “It may not be proper for the court to assume the role and will of the people or to act as a Parliament to change the law,” the government said in its 100-page written submission.
Gay sex is an offence in the country and a person indulging in it can be imprisoned for life and fined under Section 377. Gay rights activists contended that the government, by not decriminalising homosexual acts, was infringing on their fundamental right to equality.
“The Constitution gives fundamental right to equality and prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are violated,” they said
But the government said, “Homosexuals are men of perverse mind and perverse thinking.”
At the fag end of the hearing, judges had taken strong exception to BJP leader BP Singhal’s argument stressing on continuation of the legal provision prohibiting homosexuality, and asked his lawyer “Do you have any material to substantiate the claim that indulgence in such acts causes injury to people’s body”.
“In several countries where ban has been lifted (from gay sex), no one has claimed that act is injurious. Even WHO doesn’t say that it causes injuries to people involved in such acts,” the bench had observed.
b_rakesh@dnaindia.net 
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