Speaking to a packed Delhi High Court room on Friday, the additional solicitor general, P.P. Malhotra, said: “Legalising homosexuality will increase the spread of AIDS.” Just a week earlier, the Union health minister — and qualified doctor — Anbumani Ramadoss publicly stated that de-criminalising homosexuality would, in fact, help prevent the spread of AIDS.

Permitting sex between consensual adults seems a task for a just-demised-theocracy newly empowering its citizens, not an established liberal democracy like India. But the evil that some men do seems to live on. Drafted by Lord Macaulay in 1860, with Victorian certainty, Section 377 of the Indian Penal Code criminalises “carnal intercourse against the order of nature”. Subsequent courts have held this to include consensual sodomy, in effect criminalising homosexuality in India.

England, now Macaulay-less, has moved on: not only de-criminalising homosexuality, but even providing legitimacy to same-sex unions. But in India, homosexuality is viewed with suspicion; despite, according to a government study, 23 lakh people falling within the category. Political calculations — evident in ASG Malhotra’s response to court — have ensured that Section 377 has remained on the statute books. Though hardly anyone has been prosecuted for consensual sex under Section 377, it has proved a handy tool for truculent families or crooked cops to blackmail and illegally detain homosexuals.

A hundred and forty eight years on, the validity of Section 377 is being debated at the Delhi High Court. In Naz Foundation vs Govt. of N.C.T. of Delhi, the petitioners — gay rights NGOs — seek to “read down” Section 377, so that it does not apply to sexual acts between consenting adults, while still being used to protect minors and non-consenting adults. They are arguing that Section 377 is unconstitutional, and denies basic human rights to LGBTs (lesbians, gays, bisexuals and transexuals). Mayur Suresh, a bespectacled young lawyer representing a coalition of NGOs calling itself Voices against 377, believes that “medical evidence clearly shows that homosexuality is not changeable. It is not a curable disease.” As Shyam Divan, another lawyer for the coalition, argued in court yesterday, “For many homosexuals, their orientation is at the core of their identity... the moral argument cannot triumph over constitutional rights.” The other NGO involved, the Naz Foundation, has — strategically — employed a more medical argument, arguing that the stigma of illegality makes it very difficult to reach out to LGBTs who are at high risk from AIDS.

... contd.