DOKTORSKA DEZERTACIJA

Excerpts of the strained logic used by the government in the course of the PIL proceedings for wanting to retain the Victorian vintage of Section 377 and the court’s pointed efforts to make it see reason
Govt:

‘‘Right to health of few persons cannot supersede Right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there...Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.’’

HC:

‘‘What is that compelling State interest to continue with such a provision like Section 377 (carrying a punishment of upto life sentence)? Such people suffer from indignity and discrimination in the society. If there is a stringent law prescribing punishment upto life imprisonment do you expect MSMs (man having sex with man) would come forward for their treatment of HIV? Gays are living under constant fear of being prosecuted.’’

Govt:

‘‘Gay sex is immoral and a reflection of a pervasive mind and its decriminalisation would lead to moral degradation of society..Homosexuality is a social vice and the state has the power to contain it. It (decriminalising homosexuality) may create breach of peace. 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.’’

Govt:

‘‘Gay sex is against the order of the nature. We will disturb the nature by allowing them to do so. In the compelling circumstances the State has to take the help of the law to maintain the public morality.’’

HC:

‘‘There is no doubt that gays are a high risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it.’’

Govt:

‘‘Legalising homosexuality would further divide the country....it will send a wrong signal to youth of our country.’’

HC:

‘‘These are not arguments but comments on us. You are saying that we are dividing the nation by saying that they belong to minority group and then you are also saying that we are encouraging such practises!...Sexual minority means a group of people having different sexual preferences.’’

Govt:

‘‘No act of parliament can be struck down due to an affidavit or a minister’s statement. Since Parliament passed a law criminalising homosexuality, it represented the will of the people of this country.’’

HC:

‘‘It’s 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.’’
On government’s claim that legalising homosexuality would lead to spread of AIDS,

HC:

‘‘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....We won’t be first country to decriminalise in case we do. Show us that where homosexuality has been decriminalised there AIDS has spread. Place some authentic study like one backed by UN maybe.’’
On government citing a biblical research paper,
HC:

‘‘We should not accept religious literature instead of scientific report. In a secular country how can a government rely on a report which says that certain races contribute more to homosexuality? Is the Union of India supporting a document which does racial profiling?’’