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16 Oct 2008

Use scientific reports, not religious texts to argue gay sex ban: Delhi high court

In ongoing hearings about Section 377, the Delhi High Court has demanded scientific evidence showing that decriminalisation of gay sex will cause the further spread of HIV/AIDS virus as asserted by the Additional Solicitor General on behalf of the Indian government.

"We should not accept religious literature instead of scientific report." The Delhi High Court bench headed by Chief Justice A P Shah remarked in response to Additional Solicitor General P P Malhotra who cited an article condemning gay sex by quoting Bible.

"These are not scientific reports. These are articles quoting Bible which is a propaganda. Your arguments should be based on scientific reports. Show us scientific reports which justify criminalisation of such acts (gay sex)," the Times of India quoted the Bench as saying on Wednesday.

The National Aids Control Organisation, in its affidavit filed on behalf of Union health ministry which supports the view that gay sex among consenting adults should be decriminalised, pointed to the vulnerability of homosexuals to HIV infection due to current laws that hinder outreach and education programmes.

Last month, Malhotra argued that since AIDS is rampant amongst gays, it showed homosexuality was the cause for this disease and if legalised, HIV/AIDS cases would shoot up.

On Wednesday, the Delhi HC asked Malhotra to table evidence that AIDS had spread in countries where homosexuality has been decriminalised.

"We won't be first country to decriminalise in case we do. Show us AIDS has spread where homosexuality has been decriminalised. Place some authentic study like one backed by UN."

"We are not taking it (religious literature). We will be going by your report submitted by the NACO. We would rely on NACO report. You can counter it by some scientific report. Show us what World Health Organisation says on the issue. We can rely on those scientific reports," the Bench said.

"I am not saying that you cannot quote Bible but show us scientific report. The entire article you are referring to quotes the religious text. This is the opinion of a traditional religious body. It's a religious view of a certain body which cannot be relied upon," Chief Justice Shah said, adding that this is just one sided version of a religious body.

Earlier this month, the bench demanded to know the state's compelling interest to continue with such a provision like Section 377 (carrying a punishment of up to life sentence).

"If there is a stringent law prescribing punishment up to life imprisonment, how do you expect MSMs (man having sex with man) to come forward and get treatment for HIV?" the Bench asked. "People (gays) are living under fear of being prosecuted."

India

Reader's Comments

1. 2008-10-16 19:44  
Good to hear that courts around the world take a similar attitude to the quality of evidence as long as they are judicially independent.

This is how all expert evidence works - courts should use the opinion of experts and not the prejudices of bigots. Well done to the Delhi Court - hope their judgment follows through!
Comment #2 was deleted by its author
3. 2008-10-16 22:49  
Go India go! I like the sound and logical reasoning the Indian court is using... unlike so many countries who treated the issue with biased and poor arguments that are not based on facts!
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tengatango.com: taking pleasure to new heights!
4. 2008-10-17 01:18  
The Science Minister has announced that the government will accept whatever the Court decides.

It can be a face-saving way for the law to be changed, for the politicians.
5. 2008-10-17 11:47  
religious bias has not place in a court of law run by a secular government. furthermore what relevance does the bible have in a majority hindu country?
6. 2008-10-17 13:09  
A minute pause for celebration for the rational interpretation of the 'gay sex ban ' by the Delhi High Courts. Religion and many of it's prejudiced bigots are only too happy to further their views to discriminate against minorities, whether sexual or otherwise.The court has shown that this is not a valid case for argument nor evidence and is not going to accept it...my hat off to them.
While this is going on, California is fighting a very close battle against their own 'religious bigots ' who want to turn the table on 'gay marriages'.My prayers go out to ALL the LBGT community around the world...we are all proud of who we are and we demand our freedom from Discriminations, as our basic Human Rights, and free from Religious Intolerances.
7. 2008-10-17 13:42  
Indian courts and government are at least giving this an apparently honest, logical go at equalizing Basic Human Rights in an innovative way.....without all the typical X-tian bible-thumping. "hats off to India" is a good way to put it. X-tians in the USA are insanely way out-of-control....what more can possibly be written about them that hasn't already been, except that they are such narrow minded fools, their eyes are in FRONT of each other..... Years ago, when I was in denial about my own sexuality, I was one of them...a bible-thumping....proselytizing, "born again, filled-with-the-spirit, praise-the-lord xtian"...man am I glad I woke up from my coma and left and made the conscious decision to be myself. I'm so glad I'm gay...if I COULD choose in my next life, I'd choose to be gay again.
8. 2008-10-17 16:12  
HIV is NOT CAUSE AIDS
9. 2008-10-17 17:53  
Yesterday, according to newsreports, the ASG further tried the patience of the Court by attacking them, instead of advancing rational arguments, and by trying to suggest that gays were not a minority group. There's a report in Times of India.
10. 2008-10-17 18:14  
Wow. Based on the judges' comments it seems like there's a real chance of decriminalisation.
11. 2008-10-17 20:21  
So the state & church believes all gays are promiscuous and spread HIV. Also they won't allow gays to marry. So if they are troubled by the supposed promiscuity of gays why won't they allow them to marry and therefore promoted monogamy and thus decrease the alleged promiscuity? The state & church just are not consistent in their attitudes
12. 2008-10-18 00:53  
Indians love science(facts) and i love them.
13. 2008-10-19 20:10  
I am pleased at the progressive note the Delhi High Court is taking on this matter. It is only fitting they recognize the flagrant abuse of un-supported propaganda to instill hate and ignorance.

Intellectualism vs. common thuggery. I like it.
14. 2008-10-20 13:32  
Chief Justice A P Shah is someone with a lot of moral guts on top of his intellectual acheivements.
India is indeed blessed to have such a fine gifted son. arrr, i'm so jealous!!!! lol just kidding.
Comment #15 was deleted by its author
16. 2008-10-20 19:01  
India is predominantly Hindu/Buddhist yet these backward obsolete rulings against gay people are used and upheld, quoting bible verses. Duh? Same applies in Singapore. What's up with that? Even x-tian western countries have long decriminalised gay sex, yet these backward countries a/m still desperately cling on to undermining an decent human being.

Goes to show x-tian fundamentalists are the spreading evil disease that needs to be controlled, not HIV alone.

Give a self deluded x-tian enough reasons to believe he/she is "saved" above everyone else not yet converted to his flock, and he becomes head pig in animal farm. Oink!
17. 2008-10-23 20:36  
India, here I cum

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