Homosexuality ‘a criminal offence’, government tells court

September 26th, 2008 - 8:53 pm ICT by IANS  

New Delhi, Sep 26 (IANS) The government Friday told the Delhi High Court that it is not scrapping the present law on homosexuality as it is a “criminal offence” and would “disturb the law and order situation and create unnecessary problems in society”.Additional Solicitor General P.P. Malhotra said the government is not in a position to scrap the law at this time. “It (homosexuality) is a criminal offence,” he said.

“If we scrap section 377 of the Indian Penal Code (that makes homosexuality an offence), then it will disturb the law and order situation and might create unnecessary problems in the society,” Malhotra said before a bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar.

The IPC at present holds homosexual acts as an offence and section 377 provides a punishment of up to life imprisonment for indulging in it.

Meanwhile, the court pulled up the government for not clearing its stand on the two different affidavits filed by two ministries on de-criminalisation of homosexuality among consenting adults.

“Two affidavits have been filed by the two ministries (home and health). 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 court asked while posting the matter to Monday.

On Thursday, gay activists argued that morality cannot triumph over constitutional rights.

“The moral argument cannot triumph over constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” said advocate Shyam Diwan, appearing on behalf of the activists.

He also added that homosexuals in the country do not have full “moral” citizenship and are being treated as second-class citizens.

The government in its earlier 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 the 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, opposed 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 practices go unnoticed,” said an affidavit filed by the National Aids Control Organisation (NACO), which comes under the health ministry.

“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.

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