Govt to HC: Ignore Ramadoss' views on allowing gay sex

The government, under flak for taking a contradictory stand on the homosexuality law, on Monday told the Delhi High Court not to consid er Union Health Minister Anbumani Ramadoss' views on allowing gay sex among consenting adults. "It doesn't matter what the minister says. It is also not important what the affidavit says. It is for the court to decide the issue," Additional Solicitor General P P Malhotra said before a Bench headed by Chief Justice A P Shah. The Centre's response came after the court on the last hearing had pulled it up for speaking in two voices on the homosexuality law. In a contradictory stand taken by Health and Home Ministry, the former had suggested decriminalisation of gay sex while the latter said that the penal provision against such acts cannot be scrapped. "Can we decide the matter in abstract? We have to see the material," the court said adding, "If the (Health Ministry's) affidavit says that existence of Section 377 leads to health problem then we have to consider it for that aspect." The government, however, insisted on the complete rejection of the affidavit saying that it only shows the gravity of the problem and a parliamentary act cannot be invalidated only on the enormity of a problem. Even the Law Commission's suggestions cannot be a ground for scrapping the penal provision. "Whatever has been said in the affidavit, cannot be a ground for the decriminalising the acts as it would create problem to the society as a whole," Malhotra said. "If the society is made unhealthy (by decriminalisation of gay sex) the right of other citizens has also to considered. There should be balance between them," he said. Not satisfied by the Centre's contention, the Bench observed that Right to Health is a fundamental right which cannot be denied to any person. "You have to show that criminalising(of gay sex) results in better health to other people," the Bench said referring to NACO affidavit which points out that there are around 25 lakh male homosexuals and around eight per cent of them were infected with HIV. "Men Having Sex with Men (MSM) are mostly reluctant to reveal same sex behaviour due to fear of law enforcing agencies, pushing the infection underground and making it difficult to access them," the affidavit file by NACO says, adding that around 69 per cent MSM know about preventing infection but only 36 per cent use condoms. The Court was hearing a PIL filed by gay rights activists pleading for amending provisions of IPC making homosexual acts as an offence. The government, on the last hearing, had contended that gay sex was immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of the society. "Homosexuality is a social vice and the state has the power to contain it," the government had said. "It (decriminalising homosexuality) may create a 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," it said. Clarifying the contradictory stand taken by Home and Health Ministry, the Centre had said that the affidavits were filed on the different aspects of the matter as the health ministry was focusing on the health aspect while the Home Ministry response was from law and order point of view. Gay rights activists, on the other hand had contended that the government, by decriminalising homosexual acts, was infringing upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality. "The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But these rights of 25 lakh homosexuals in the country are being violated," they had contended on Thursday "Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex," the activists had said adding that gays in the country don't have full "moral" citizenship and they are being treated as second class citizens.

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