Centre tells Supreme Court gay sex immoral, calls for new ban [India]

The Times of India ^ | February 23, 2012 | The Times of India

[James C. Bennett]

NEW DELHI: The Centre on Thursday opposed the dilution of Section 377 of the Indian Penal Code (IPC) by the Delhi High Court, which decriminalised sexual acts, in private, between consenting adults of the same sex and urged the Supreme Court to reverse the landmark ruling. The UPA government told the Supreme Court that the HC had erred because a vast section of the Indian society still considered homosexuality immoral.

The Delhi High Court on July 2, 2009, had delivered a historic judgement to amend a 149-year-old law - Section 377 of the IPC - and decriminalise private consensual sex between adults of the same sex. The judgment was seen as the biggest victory yet for gay rights.

Gay sex "is highly immoral and against the social order," additional solicitor general PP Malhotra, who is representing the Centre, told the apex court on Thursday.

He added that it was "against nature and spreads HIV."

The Centre said it favoured the ban staying in place in order to prevent child abuse and because Indian society was largely against homosexuality according to a survey by the Law Commission. "Laws can't run separately from society and the morals of the time," Malhotra said.

When the Supreme Court asked who decided what was immoral, the Union government said society did so and argued that the Indian laws could not but reflect the views of its society. The government said the HC considered only judgements of foreign countries where homosexuality may not be resented.

"Our moral and social values are different from other countries and we cannot be guided by them,' the Centre told the court.

Hence, it appealed that the provision be retained in full to reflect the society's views. Though the Centre had not appealed against the judgement, the ministry of Home affairs came out strongly against the dilution of Section 377.

The Union home ministry, however, denied that it had taken any position on homosexuality. In a statement, the ministry said: "After the judgment of the High Court, Delhi, decriminalizing homosexuality, was delivered, the matter was considered by the Cabinet. The decision of the Cabinet was that the Central government may not file an appeal against the judgment in the Supreme Court; however, if any other party to the case prefers an appeal, the Attorney General may be requested to assist the Supreme Court to examine the matter and to decide the legal questions involved. Home ministry conveyed this decision to the AG."

"The ministry has also not given any instruction apart from conveying the decision of the Cabinet," it said.