Centre tells HC not to consider Ramdoss' stand on gay sex

New Delhi, Sep 29 (PTI) Under flak for taking two
contradictory stands on the homosexuality law, the government
today told the Delhi High Court not to consider Union Health
Minister Anbumani Ramadoss' views on allowing gay sex among
consenting adults.

The government's bid to distance itself from the health
minister's stand is a follow-up move after it told the court
earlier that it was opposed to decriminalisation of gay sex.

The court during the last hearing had pulled up the
government up for speaking in two voices on the issue as the
Union Home Ministry suggested not to decriminalise gay sex on
moral ground while Health Ministry proposed to abolish the
penal provision which carries a punishment of upto life
imprisonment for such acts.

"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 adding
that the Centre is against decriminalisation of gay sex.

"When a provision of law is challenged, the court should
be guided by what the constitution says. It should not be on
the basis of what the minister says or the affidavit says," he
said adding that, "Validity of a law is not to be judged by
the affidavit."

The Bench, also comprising Justice S. Muralidhar,
however, clarified that the case is not to be decided on the
basis of the affidavit but Health Ministry's response is
relevant as it has highlighted problems faced by homosexuals.

"If some minister says something and file affidavit, we
cannot invalidate the act on the basis of it. But this
affidavit is relevant and it says some factual aspects on the
issue," the Bench said.

"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.
Their 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 National AIDS Control Organisation (N.A.C.O.)
affidavit which points out that there are around 2.5 million
male homosexuals and around eight percent of them were
infected with H.I.V.

"Men Having Sex with Men (M.S.M.) 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 N.A.C.O.
says, adding that around 69 percent M.S.M. know about
preventing infection but only 36 percent use condoms.

The Court was hearing a Public Interest Litigation
(P.I.L.) filed by gay rights activists pleading for amending
provisions of the Indian Penal Code (I.P.C.) making homosexual
acts as an offence.