Source: Thaindian News, Daily News & Analysis, Indian Express
NEW DELHI -- An extended legal debate over an Indian statute that makes gay sex illegal took a new twist this week as lawyers for the government's ruling coalition argued that Delhi High Court, which has been hearing a challenge to the statute, has no authority to overturn it.
The court should refrain from passing any judgment on the issue because it might encroach upon legislative functions, the Center -- India's ruling coalition -- said in its reply to the petitions being heard by the court.
At present, gay sex is an offence in the country. Section 377 of the Indian Penal Code (IPC) provides a punishment up to life imprisonment for indulging in such an act.
Gay rights activists contended that the government, by not decriminalizing 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 in earlier hearings, "Homosexuals are men of perverse mind and perverse thinking."
On November 7, the judges reserved judgement on the issue, giving parties time to submit their written submissions.
Sometimes frustrated justices have repeatedly asked the government's counsel to submit evidence to back up his assertions.
But he submitted a new argument this week rather than responding to the court's request for scientific reports to back up the government's contention that repealing the would the anti-gay portion of section 377 would be a health and moral hazard.
Indian gov't now tells court it doesn't have authority to overturn anti-gay law [contd.]
"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 petition filed by gay rights activists seeking court’s direction for legalizing gay sex among consenting adults, according to Daily News & Analysis.
"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.
"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.
Malhotra had previously opposed the petition by asserting that if consenting adults are permitted to have same-sex relations, it would affect the health of other citizens who could be exposed to risk.
Source: India - Govt ups ante on homosexuality - Daily News & Analysis
Parliament, not court, can decide on homosexuality: counsel | Thaindian News
Section 377: Centre says courts can’t make laws | Indian Express