The Delhi High Court on Tuesday told the Centre to submit specific proof to substantiate its claim that the practice of homosexuality spreads the HIV virus.

“Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV,” a Division Bench of Chief Justice A P Shah and Justice S Muralidhar told the Centre.

“If your argument is correct, then spread of HIV should have stopped in the country as the law has been in place for the past many years. But it is not the case as many people are still dying from the virus,” the court said.

The High Court bench also pointed to the contradictions between the affidavit filed by the Home Ministry — on which the Centre is currently basing its arguments — and the Health Ministry, which notes that Section 377 encourages marginalisation of the gay community.

“It is a strange situation. Your first affidavit (Home Ministry’s) is silent. There is not a single word on what you are saying, while other affidavit (Health Ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients,” the court asked.

“How would the court decide the matter. Has there been any empirical study done by the Government to substantiate its stand?” the court said.

The judges also called for a special law to provide proper care and treatment to HIV patients, like other countries.

Putting forward the Centre’s view, Additional Solicitor General P P Malhotra said gay sex was a threat to the society and cannot be decriminalised. “Right to health of a few persons cannot supersede the right to health of society. There has to be a balance between them and it is for this purpose that Section 377 is there,” the ASG submitted.