Source: Times of India, Express Buzz, Indian Express, Sify News
New Delhi -- Despite earlier hints that it might be willing to scrap a colonial-era law called Section 377 that criminalizes homosexuality, the Indian government on Friday said in a court hearing that it will not do so.
Calling homosexuality a "social vice'' and "a reflection of a perverse mind'', a solicitor representing India's central government told the Delhi High Court that the government is opposed to any change in the law.
The Indian penal code at present defines gay sex as an 'unnatural offence' and section 377 provides a punishment of up to life imprisonment for indulging in it.
"If we scrap section 377 of the Indian Penal Code, then it will disturb the law and order situation and might create unnecessary problems in the society," a solicitor speaking for the government told the Delhi High Court.
The court was finally hearing a case brought more than seven years ago by Naz Foundation.
Earlier in the week the two justices hearing the case had compared criminalization of homosexuality to India's old caste system.
At Friday's hearing, Chief Justice A. P. Shah and Justice S. Muralidhar were both critical of inconsistencies in affidavits submitted for the government by home ministry and health ministry, Times of India reports.
Indian high court hears of gay rights and wrongs in case against Section 377 [contd.]
An affidavit from the home ministry argued, "Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private."
But an affidavit filed by National Aids Control Organisation (NACO), which is associated with the health ministry, urged repeal of the parts of the section that criminalize private adult sexual behavior.
"Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation," the NACO contended in its affidavit, according to Sify News.
NACO also argued that laws against gay sex contribute to the country's rising HIV epidemic by "pushing the persons suffering from HIV underground."
The justices asked the government's counsel to explain the conflicting affidavits.
"Two affidavits have been filed by the two ministries. The two ministries are speaking in two voices. What is the stand of the government? Are you clear about the stand the central government is taking on the issue,'' the bench demanded to know.
Additional Solicitor General PP Malhotra insisted that the government was firmly opposed to any relaxation of the law, saying that changing the law would lead to "breach of peace."
"Homosexuality is a social vice and the state has the power to contain it,'' Malhotra argued. "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.''
The justices heard detailed arguments earlier in the week from Anand Grover, representing Naz. The main "prayer" or relief Naz is asking for is that Section 377 "read down" to exclude consenting sexual acts between adults, Express Buzz reports.
Grover explained that the petitioners were asking for a "reading down" of the law rather than a complete repeal of the section. He said repeal would lead to a lacuna in existing laws when it came to non-consensual sex, specifically child sexual abuse.
At Friday's hearing, the justices sharply questioned the government's counsel about why he seemed to ignore the more limited purpose of the case.
"We are concerned about homosexual acts among consenting adults in private here,'' the bench told Malhotra.
"Homosexuality is a social vice and the state has the power to contain it,'' Malhotra contended.
On Thursday, advocate Shyam Diwan, appearing on behalf of the Naz, argued that morality cannot triumph over constitutional rights.
He added that LGBT people in the country do not have full "moral" citizenship and are being treated as second-class citizens, Sify News reports.
"The moral argument cannot triumph over constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex," Diwan said.
While questioning Grover, Shah, the chief justice, disagreed with that assertion, "To say that public morality cannot be a source of criminal law is not correct," Shah said.
Grover replied that the rights of minorities must be protected in a democracy, and the state needed to show what the legitimate aim of the law was to enter the zone of privacy, Express Buzz reports.
Grover had argued that criminalizing homosexuality was a violation of the right to dignity that has been read into the right to life guaranteed in the Indian Constitution.
In comments, both justices compared discrimination based on sexual orientation to caste-based discrimination, Express Buzz reports. "If you belong to the 'untouchable' category, you suffer a disadvantage in every aspect of life. The effect of criminalisation (of homosexuality) is like treating you as a member of a scheduled caste", said Chief Justice Shah.
Source: Final hearings of the homosexuality case | Express Buzz
Homosexuality a criminal offence: Govt tells court | Sify News
Centre: Homosexuality is a reflection of a perverse mind | Times of India
Centre against scrapping of law outlawing homosexuality | Indian Express