Representing the Government of India, Additional Solicitor General (ASG) P P Malhotra has questioned if the judiciary has the authority to legalise sexual relations among people of the same sex.
The government counsel's submission came on a public interest petition filed by gay rights activists seven years ago seeking to have Section 377 read down i.e. for sexual relations among consenting adults of the same sex in private to be legalised.
At present, sex between persons of the same gender is an offence in the country and Section 377 of the Indian Penal Code (IPC) provides a punishment up to life imprisonment.
The ASG added, "It may not be proper for the court to assume the role and will of the people or to act as a Parliament to change the law."
"What are the laws and what could be the law should be left to the wisdom of the Parliament. Neither the Courts are equipped nor is it the function of the Court to decide what the law should be. The Courts have only to interpret the law as it is."
The Delhi high court completed hearing arguments in the case on Nov 7 and has reserved its judgment.
While the health ministry supports the decriminalisation of same sex on the grounds that the current laws obstruct HIV/AIDS education campaigns, the home ministry maintains that gay sex is the product of "a perverse mind" and contended that homosexuality is a disease which is responsible for the spread of AIDS in the country.
The comment invited objection from the bench which said: "Show us one report which says that it is a disease. A World Health Organisation (WHO) report says that it is not a disease but you are describing it as a disease. It is an accepted fact that it is a main vehicle that causes (AIDS) disease but it is not a disease itself."
On another occasion, the government's counsel was asked to present scientific reports after he cited a verse of the Bible condemning gay sex.
"We are not taking it (religious literature). We will be going by your report submitted by National Aids Control Organisation (Naco). We would rely on that report. You can counter it by some scientific report," the bench said.
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Reader's Comments
There's nothing new in the article though; it's just repeating some of the submissions already made by the Home Ministry, which have been countered by the other parties.
Anyone know if the Home Affairs Minister who is behind the opposition to the Petition is the same one who has just had to resign over the terrible Mumbai massacre for failing to act on advance warnings?
Yes Steve, the Home Minister is the same guy, Shivraj Patil, who opposed the petition earlier. His picture appears in the other earlier thread on this issue. Hopefully his replacement will be better, but don't hold your breath.
BUT sometimes the local rationales, for denying democracy to what ever person or people, remind me of the old Irish joke whose cynical punchline is: "Well, Sean if I don't want to lend ye' me hammer... one reason is as good as another."
In this case, the ASG claims that the legislature is the place (not the court) to decide issues vav gay rights, I would like to remind everyone that even though in most cases majority rule is the guideline for decisions in a democracy... one of the foremost TENTS of democracy is to PROTECT a vulnerable minority from oppression by the majority. It is exactly in this situation that the courts are expected to step in and override such oppression.
In the USA, it IS THE COURT (US Supreme court via lower courts' appeals) which is the ultimate decider of the law. The legislature passes "laws" but the courts decide if those "laws" are lawful under the constitution. After all a law can be passed by a legislature and not really be lawful.
Perhaps India's constitution does not give high STANDING to the courts. IF that is so... what a mess!
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