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.