Show how scrapping of section 377 will spread AIDS: court to government

September 30th, 2008 - 10:36 pm ICT by IANS  

New Delhi, Sep 30 (IANS) Taking a sharp dig at the government, the Delhi High Court Tuesday remarked that scrapping section 377 of the Indian Penal Code that makes homosexuality an offence won’t lead to a rise in AIDS cases as contended by the government.Additional Solicitor General P.P. Malhotra while continuing his arguments against scrapping of the provision, said: “Scrapping of penal section against homosexuality will lead to increasing number of AIDS cases.”

The bench comprising of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, said: “Please show material, research paper or any document even from other country to show that de-criminalisation (of gay sex) would lead to spread of HIV.”

“If your argument is correct, then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease,” the court said.

The court objected to the government’s contention that the home ministry’s affidavit, on which the government is relying, does not say anything on this aspect.

“It’s a strange situation. Your first affidavit (home ministry’s) is silent. There is not a single word on what you are saying while other affidavit (health ministry’s) points out that the penal provision leads to marginalisation of HIV patients,” the court said.

“How would the court decide the matter? Has there been any empirical study done by the government to substantiate its stand?” the court asked.

“Right to health of a few persons cannot supersede right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there,” Malhotra contended.

The Indian Penal Code terms homosexual acts an offence under section 377, which provides for punishment up to life imprisonment for violators.

The government, in its earlier reply, had taken a contradictory stand with the home ministry favouring the retention of Section 377 and the health ministry opposing enforcement of the provision 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 said in its affidavit.

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

The health ministry, on the other hand, had said: “Enforcement of Section 377 can adversely contribute to pushing persons suffering from HIV underground, which would make such risky sexual practices go unnoticed.”

“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,” said the affidavit, filed by the National Aids Control Organisation (NACO) that comes under the health ministry.

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