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."