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Gay sex ruling runs into ‘morality’ hurdle
- Organisations urge SC to consider what’s wrong & what’s good for society

New Delhi, Feb. 29: Organisations representing Hindus, Muslims and Christians today objected to the Delhi High Court order legalising consensual homosexual behaviour in private on the grounds that it was “immoral” and against “religion” and “majoritarian sexual morality”.

Opening arguments in the Supreme Court in a batch of appeals against the order that kept all adult consensual sex in private out of the ambit of Section 377 of the Indian Penal Code, the Krantikari Manuvadi Morcha Party argued that laws were a reflection of a society’s moral standards.

Societal morality and discipline was maintained by Parliament by framing laws, said Morcha lawyer Sushil Jain, who concluded his arguments today.

Adultery, sati and dowry were crimes because Parliament has enacted laws to prohibit them, Jain said, pointing out that sati was outlawed despite sati temples flourishing all around.

“Ultimately Parliament has to see what is wrong and what is good for the society,” the Morcha said, also citing the anti-dowry and anti-narcotics laws as an expression of societal morality through Parliament.

The Morcha, which has been arguing for the past few days, cited the example of an earlier challenge to Section 498A of the IPC (the anti-dowry law) that fell through because the courts rejected the theory that misuse of a law could be a reason to strike it down.

Justice G.S. Singhvi, sitting alongside Justice S.J. Mukhopadhyaya, however, pointed out that in this instance the state had admitted to harassment of the gay community by police.

Jain said harassment could be said to be a failure of the machinery and not a failure of the law. “By that logic, the whole of the IPC is being misused by police every day, it should be struck down,” he contended.

Justice Singhvi countered this saying: “If the state admits that the IPC is being misused, we can consider that.”

The Morcha lawyer then argued that the harassment claim was not backed by any data. He also said Section 377 had once been amended by Parliament and every issue involved examined by the House.

After Jain had concluded, the Utkal Christian Council and the Apostolic Churches’ Alliance argued that Section 377 only targeted sexual activities and not people. They pointed out that sodomy was still a ground for divorce in many personal laws. Legalising gay sex, they feared, would lead to same-sex marriages and same-sex families.

Justice Singhvi intervened to say that things were changing at a very fast pace. He cited the example of the Sikh Gurudwara Act enacted by the British which described anybody drinking alcohol as “patit” or “fallen”. “By those standards, how many of us will now be patits?” the judge asked.

The All India Muslim Personal Law, through lawyer Huzfaa Ahmadi, objected to the government’s attempts to be neutral. Huzffa said: “It is the government’s constitutional obligation to defend the law. It cannot say that it will not take a stand.”

At this point, Justice Singhvi took a dig at the government: “This is a new phenomena. I will be neutral; I will not defend the law.”

The government has sought the court’s permission to take a neutral position on Section 377, but has not yet been allowed to do so.

Huzfaa also pointed out that homosexuality was a crime in at least 76 countries. “Promotion of majoritarian sexual morality is legitimate state interest,” he said, citing a US judgment.

The logic to justify homosexual behaviour that it was adult, consensual behaviour in private could be used to also validate incest and group sex, the lawyer said.

At the close of arguments today, Justice Singhvi sought information from the health ministry on the NGOs it enlists for controlling AIDS/HIV.

The bench also directed a senior health ministry official to be present in the court tomorrow to present comprehensive statistics on the number of HIV-affected people in the country.