New Delhi, Sep 29 (UNI) The government today reiterated its stand and 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(ASG) PP Malhotra said the government was not in a position to scrap the law at this time. ''It (homosexuality) is a criminal offence.'' he said.
Arguing before a Division bench comprising Chief Justice AP Shah and Justice S Murlidhar, the ASG 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 society.'' Earlier, the Court had pulled up the Government counsel for the casual manner in which he filed his response to a PIL on gay rights and also for its two views in the matter.
Health Ministry had earlier filed an affidavit asking the Government for relaxation of setion 377 which leads to moral degradation in society while the Home Ministry opposed it.
The IPC at present holds homosexual acts as an offence and section 377 provides a punishment upto life imprisonment for indulging in it.
The 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 added that homosexuals in the country do not have full moral citizenship and were 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 coming out against the enforcement of Section 377 (unnatural sex) 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,'' Mr Malhotra said.
''Enforcement of section 377 can adversely contribute in pushing the person suffering from AIDS underground which will make such risky sexual practices go unnoticed,'' was the stand taken by the National Aids Control Organisation (NACO), which comes under the health ministry.
Mr Malhotra said the stand of the Health Ministry cannot be taken as the cabinet's stand. The laws are made by Parliament and not by the courts. The Health Ministry's stand is only a view of one Minister which cannot be imposed on the nation. ''We also have to consider the rest of society which apposes this act. Section 377 demeans a gay. It silences a gay into accepting the discrimination against him. He will not come out to declare his orientation, the NGO contended.
The arguments will continue tomorrow.
UNI SNG SB KN2019