Government in conflict over gay rights

September 18th, 2008 - 9:10 pm ICT by IANS  

New Delhi, Sep 18 (IANS) The government Thursday sought more time from the Delhi High Court to sort out differences between its home and health ministries over de-criminalisation of homosexuality among consulting adults.Additional Solicitors General P.P. Malhotra, appearing for the government, told the court that the matter is under consideration and the cabinet would soon take a decision on the issue in view of the differences among the ministries.

A bench comprising Chief Justice Ajit Praksh Shah and Justice S. Muralidhar, however, refused to adjourn the matter saying that the government can file its response during the hearing of the case.

The government in its reply had taken a contradictory stand with the home ministry favouring the retention of the penal provision for homosexual acts while the health ministry was against the enforcement of Section 377 (unnatural offences) in cases involving consenting adults.

“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,” the home ministry had said in its affidavit earlier.

“Deletion of the section can open the floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,” it had said.

The health ministry, on the other hand, has not favoured the enforcement of the penal provisions against consenting homosexual adults.

“Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practises go unnoticed,” said an affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health.

“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 NGO contended.

Pointing to the vulnerability of homosexuals to HIV infection, the NACO had said that there were around 2.5 million male homosexuals and around eight percent of them were infected with HIV whereas among heterosexuals the infection rate was only one percent.

‘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 by NACO had said, adding that around 69 percent of the MSM know about preventing infection but only 36 percent use condoms.

The petition filed by Naz Foundation, an NGO seeks the court’s direction to declare Section 377 ‘unconstitutional’. The petition contends it violated a citizen’s fundamental right and promoted illegal sex.

Anand Grover, counsel for Naz, informed the court that in Nepal, Hong Kong and in South Africa, homosexuality is legalised and India should also do so. He cited several court judgements in support of his argument.

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