Gay rights in India: Govt buys time

 19 Sep 2008, 0305 hrs IST,TNN.  NEW DELHI: The Central government is in a bind over the issue of scrapping of section 377 of Indian Penal Code, which deals with criminalisation of homosexuality. This came to light on Thursday when counsel for the government sought more time to convey its stand on a petition challenging the legality of this section.  Additional Solicitor General P P Malhotra submitted before a division bench of the Delhi high court comprising Chief Justice A P Shah and Justice S Muralidhar that the Union Cabinet is trying to reconcile the difference of opinion between the Health Ministry and Home Ministry on decriminalization of homosexuality. ''It is beyond my hands, the Cabinet is seized of the matter,'' ASG Malhotra said, while seeking more time. He conceded that the Centre has failed to sort out the differences between the Home and Health Ministries over decriminalisation of homosexuality among consenting adults ever since the difference emerged during the earlier hearing on the matter before HC. On Thursday, the High Court however refused to adjourn the matter saying the government can file its response during the pendency of the case and said it would like to hear the government's viewpoint next week. ' 'Let the Cabinet take the decision. We are not going to pass the order today,'' the Bench said. In their contradictory stand the ministry of home affairs favoured the retention of the penal provision for homosexual acts while the health ministry was against the enforcement of Section 377 in cases involving consenting adults. ''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,'' the Home Ministry had said in its affidavit. It added: ''Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,'' and maintained that the section was needed in the IPC to deter sexual abuse and related crimes.  The Ministry of Health, on the other hand, has not favoured the enforcement of the penal provisions against consenting homosexual adults. ''Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practises go unnoticed,'' said an affidavit filed by National Aids Control Organisation (NACO), which comes under the ministry of health. It pitched for legalisation of the section as that would allow better regulation and prevent spread of AIDS. The high court was hearing a public interest petition by Naz Foundation, an NGO seeking abolition of section 377 of IPC. The hearing is expected to continue on Friday.