Gay ban: Court makes moralist Govt squirm

The Centre’s affidavits filed earlier in the court reveal a “casualness” in treating the question of legalising homosexuality. Here is a sample of the affidavit that irked a Bench of Chief Justice A P Shah and Justice S Muralidhar today: “Acts glorified in the past like dowry, domestic violence, widow remarriage have now been brought under the purview of criminal justice system, likewise practice of homosexuality or lesbianism is not accepted in our society.”

This prompted the bench to ask the government, represented by Additional Solicitor General (ASG) P P Malhotra, on what basis they made “widow remarriage” an offence.

“It is a pity to know with what casualness the affidavit has been drafted. Since when has widow re-marriage been a crime? And what is the relation between widow re-marriage and the problem at hand?” asked Justice Muralidhar.

The bench added: “Mr Malhotra, from what I read in your affidavits, you (government) are against the scrapping of the entire provision. But the petitioner (Naz Foundation and 13 other NGOs) is only asking for a modification to the extent of only removing the portion which criminalises adult homosexual love. They never asked for scrapping the entire Section 377 IPC.”

The ASG, however, stuck to his brief that “homosexuality is a social vice and the State has the power to contain it.”

The ASG’s argument in the hearing that “encouraging homosexual acts results in the spread of AIDS” also came in for criticism from the bench for the “attitude and complete non-application of mind” shown by the government. To Malhotra’s argument that Section 377 is required to contain spread of HIV virus, the bench said: “Why don’t you ban sexual intercourse (involving HIV infected person) if you want to contain the spread of HIV?”

“As judges, we strongly react to this attitude of the government. We have got used to this kind of casualness from your side,” the court said.

The bench also pointed out that the affidavits do not contain the contention that “homosexuality results in the spread of AIDS” as orally argued by the ASG in the court today.

The ASG’s reply that he was merely “stating the ground situation”, was countered by the bench with “your argument on AIDS is completely against the ground situation”.

Representing 13 NGOs battling for the rights of the gay community, senior counsel Shyam Diwan had yesterday submitted before the bench: “From the moment they wake up to the moment they retire, gays and lesbians are a community which face verbal harassment, have restricted movements and gestures and are expected to conceal their true identity. Compounding to this trauma is the criminalization for who and what they really are.”

Noting that government figures itself say that there are about 25 lakh persons in this community, Diwan said: “This means that 25 lakh people are met with the moral disapproval of the state. Twenty-five lakh people do not have full citizenship.” Meanwhile, Ramadoss has maintained that criminalisation of gay sex was causing problems in the implementation of the National AIDS Control Programme pushing gays under the radar and preventing them from availing of AIDS control programmes.