Calling sexual relations a "social vice" and "a reflection of a perverse mind", India's Union government told the Delhi High Court last Friday it opposed scrapping of Section 377 of Indian Penal Code.

Additional Solicitor General P P Malhotra said the government was not in a position to scrap the law at this time. "It (homosexuality) is a criminal offence," he was quoted as saying in local media reports.

"Homosexuality is a social vice and the state has the power to contain it... If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to big health hazard. It would degrade moral values of the society," Malhotra said before a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

"Why do not you ban sexual intercourse (involving HIV infected person) if you want to contain the spread of HIV?" The bench hitted out at Malhotra's often used argument that "homosexuality" causes the spread of HIV virus, reported The Indian Express.

Section 377 of the Indian Penal Code provides a punishment of up to life imprisonment for same-sex sexual relations. The hearing is the result of a petition filed by Naz Foundation in 2001 seeking to have Section 377 "read down" so that it does not apply to sexual acts between consenting adults. The same law is used to protect minors and non-consenting adults.

The petition filed by the Naz Foundation reads in part: "Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation," the NGO contended... "It can be criticised on the basis of moral grounds but it is illegal to make homosexual acts between consenting adults an offence."

Last Thursday, advocate Shyam Diwan, appearing on behalf of Naz Foundation argued that morality cannot triumph over constitutional rights.

"For many homosexuals, their orientation is at the core of their identity... The moral argument cannot triumph over constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex." He added that homosexuals in the country do not have full "moral" citizenship and are being treated as second-class citizens.

The Centre's stand assumes significance in view of the contradictory stand taken by two of its ministries. The Health and Home Ministries have taken contradicting stands on the issue with the Home Ministry favouring to keep the status quo.

"Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private," the Home Ministry had said in its affidavit earlier.

"Deletion of the section can open the floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts," it had said.

In referencing a judgment in a child sexual case by an Orissa court passed more than two decades ago, Malhotra's attempts to link homosexuality as being "reflection of a perverse mind" failed to impress the court.

Justice S Muralidhar said, "We are concerned about homosexual acts among consenting adults in private so that judgement is not relevant here.

"Much water has flown under the bridge during last 25 years."

The case continues this week.

For detailed court reports (filed by Lawyers' Collective, India), visit www.lawyerscollective.org and media reports listed below.

Media reports
Ramadoss to take up gay rights issue with PM (Oct 1, indiatimes.com)
Ramadoss views relevant: Court (Sep 30, hindustantimes.com)
Curbing homosexuality not a solution for HIV: HC (Sep 30, expressindia.com)
Ignore Ramadoss's stand on gays: Govt to HC (Sep 30, ndtv.com)
Wake up to global reality on gays: Interview with Health Minister Anbumani Ramadoss (Sep 29, thaindian.com)
HC slams Centre's casual response to PIL on gay rights (Sep 28, indiatimes.com)
Centre: Homosexuality is a reflection of a perverse mind (Sep 27, indiatimes.com, with video link)
Gay ban: Court makes moralist Govt squirm (Sep 27, indianexpress.com)
Homosexuality a criminal offence: Govt tells court (Sep 26, sify.com)

News videos
Video: Homosexuality debate: Is being gay a crime? (ndtv.com, 10.31 mins)
Video: Homosexuality debate: HC slams Centre (ndtv.com, 2.28 mins)
Video: Health and home ministries battle over gay rights (indiatimes.com, 1.20 mins)