Homosexuality is not a disease, says High Court

Centre: If Legalised, It’ll Bring Devastation To Society

Irritated by the government’s contradictory and unscientic stand on the issue of homosexuality, the Delhi high court on Monday told the government that the homosexual trait in a human being cannot be termed as a ‘‘disease’’ and objected to the contention that if legalised, homosexuality would bring ‘‘devastation’’ to society.

‘‘Show us one report which says that it is a disease. A WHO paper says that it is not a disease but you are describing it as a disease. It is an accepted fact that it is a main vehicle that causes (AIDS) disease but it is not a disease in itself,’’ a Bench headed by Chief Justice A P Shah remarked in response to Additional Solicitor General P P Malhotra’s harping on the point that homosexuality was a disease that is responsible for the spread of AIDS in the country.

‘‘AIDS is already spreading in the country and if gay sex is legalised then people on the street would start indulging in such practises saying that the High Court has given approval for it. Legalising it would send a wrong message to our youth,’’ Malhotra maintained, at which HC took strong exception and said the matter (pertaining to legalising gay sex) was still under consideration and the Centre should not make such a submission.

The Court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults which, at present, is an offence. Section 377 of Indian Penal Code provides a punishment upto life imprisonment for indulging in gay sex.

Continuing with its opposition the government described homosexuality as ‘‘a most indecent behaviour’’ in society, pointing out that homosexuals comprise just 0.3% of the population and the interest of rest 99.7 per cent population ‘‘cannot be compromised’’ just to accomodate their rights.

‘‘Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country,’’ Malhotra said arguing that an amendment in section 377 would mean subsequent tinkering around with marriage and divorce laws of each community as all have sodomy as a ground for divorce. The ASG claimed even section 375, which pertains to rape, would need an amendment to change definition of ‘‘consent’’ if homosexuality was legalised.

‘‘Our constitution does not talk about sexual orientation. We cannot impose other countries’ constitutions on us. Our moral and ethical values are different,’’ the ASG said while concluding Centre’s arguments.

Meanwhile, an independent party in the PIL, B P Singhal, who is opposing decriminalisation of gay sex started his arguments and described homosexuality as an ‘‘evil’’ exported from western countries.

‘‘If the court allows such acts then it would lead to male prostitution and the epidemic of AIDS would further spread. We would no longer be a country called India if Section 377 is removed and such behaviour (gay sex) is allowed,’’ Advocate H V Sharma appearing for the political leader said.

The Court, however, instructed him to ‘‘stick’’ to legal issues involved in the case and not raise political ones. Earlier, gay rights activists had contended that the government, by not decriminalising homosexuality, was infringing upon their fundamental right to equality on grounds of morality.

Times View

The government is taking a completely unscientific position while stubbornly opposing homosexuality among consenting adults. It has cited religious texts, advanced Victorian arguments, called homosexuality as being against nature and accused it of depraving society. What it has betrayed in the process is its deep-seated bias against this sexual minority. And the court has repeatedly ticked it off, asking it to provide scientific evidence to back its position. The government has preferred not to do so. Instead, it has tried to pass off age-old prejudices as a considered view. This will not do. If the government believes there is good scientific reason why gay sex should remain prohibited, it should provide evidence. If not, it should realise that outdated moral norms cannot be a basis for restricting individual choice.

Govt’s fancy claims, HC’s reality check

Excerpts of the strained logic used by the government in the course of the PIL proceedings for wanting to retain the Victorian vintage of Section 377 and the court’s pointed efforts to make it see reason

Govt:

‘‘Right to health of 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...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.’’

HC:

‘‘What is that compelling State interest to continue with such a provision like Section 377 (carrying a punishment of upto life sentence)? Such people suffer from indignity and discrimination in the society. If there is a stringent law prescribing punishment upto life imprisonment do you expect MSMs (man having sex with man) would come forward for their treatment of HIV? Gays are living under constant fear of being prosecuted.’’

Govt:

‘‘Gay sex is immoral and a reflection of a pervasive mind and its decriminalisation would lead to moral degradation of society..Homosexuality is a social vice and the state has the power to contain it. It (decriminalising homosexuality) may create breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society.’’

Govt:

‘‘Gay sex is against the order of the nature. We will disturb the nature by allowing them to do so. In the compelling circumstances the State has to take the help of the law to maintain the public morality.’’

HC:

‘‘There is no doubt that gays are a high risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it.’’ Govt: ‘‘Legalising homosexuality would further divide the country....it will send a wrong signal to youth of our country.’’

HC:

‘‘These are not arguments but comments on us. You are saying that we are dividing the nation by saying that they belong to minority group and then you are also saying that we are encouraging such practises!...Sexual minority means a group of people having different sexual preferences.’’

Govt:

‘‘No act of parliament can be struck down due to an affidavit or a minister’s statement. Since Parliament passed a law criminalising homosexuality, it represented the will of the people of this country.’’

HC:

‘‘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) is pointing out that the penal provision leads to marginalisation of HIV patients.’’ On government’s claim that legalising homosexuality would lead to spread of AIDS,

HC:

‘‘Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV....We won’t be first country to decriminalise in case we do. Show us that where homosexuality has been decriminalised there AIDS has spread. Place some authentic study like one backed by UN maybe.’’ On government citing a biblical research paper,

HC:

‘‘We should not accept religious literature instead of scientific report. In a secular country how can a government rely on a report which says that certain races contribute more to homosexuality? Is the Union of India supporting a document which does racial profiling?’’

Source:- The Times of India 21 October Delhi P.10
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