New Delhi, Oct 15 (UNI) The Delhi High Court today directed the Government to produce some evidence to prove their stand that HIV deaths were caused due to homosexuality and removing section 377 from the Indian Penal Code (IPC) will lead to more such cases.
A bench comprising Chief Justice A P Shah and Justice S Murlidhar directed the Home Ministry to establish their stand scientifically but not merely by religous beliefs. They told the High Court that it was not scrapping the present law on homosexuality as it was a ''criminal offence'' and would ''disturb the law and order situation and create unnecessary problems in society.'' Additional Solicitor General P P Malhotra had supported the section 377 (unnatural sex) as an offence and said the Government was not in a position to scrap the law at that time. ''It (homosexuality) is a criminal offence and will remain so,'' he said.
Earlier, the Court had pulled up the Government counsel for the casual manner in which it filed its response to a PIL on gay rights and also of its two views in this matter.
Health Ministry had earlier filed an affidavit asking the Government for relaxation of section 377 which leads to moral degradation in the society whereas the Home Ministry opposes it.
The IPC, at present, holds homosexual acts as an offence and section 377 provides a punishment of upto life imprisonment for indulging in it.
Morality could not triumph over Constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex, lawyer Shyam Diwan, appearing on behalf of the activists had argued.
He added that homosexuals in the country did 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 was against the enforcement of the section 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," this was the stand taken by the National Aids Control Organisation (NACO), which comes under the Health Ministry.
Gay activists contention is section 377 demeans a gay man. It silences a him into accepting the discrimination against him. He will not come out to declare his orientation.
UNI SNG GL BD1920