New Delhi, March 22: The Centre today told the Supreme Court the criminalisation of gay sex had been “imposed” on Indian society by the British colonial rulers, effectively arguing that homosexuality offended Victorian and not Indian values.

Attorney-general G.E. Vahanvati was expressing the Centre’s stand on private bodies’ appeals against a Delhi High Court judgment that has taken all private and adult consensual sex out of the ambit of an 1860 law that criminalised sex “against the order of nature”.

“Introduction of Section 377 in the IPC (Indian Penal Code) was not a reflection of existing Indian values and traditions. Rather, it was imposed upon Indian society by the colonisers,” Vahanvati said.

The argument rebuts one of the positions taken by many of the appellants --- mostly religious groups from several faiths --- that homosexuality went against Indian culture.

“Indian society... before the enactment of the IPC had a much greater tolerance for homosexuality than its British counterpart, which was at this time under the influence of Victorian morality and values in regard to family and procreative nature of sex,” Vahanvati said.

The statement came a day after the government, rapped by the top court for refusing to take a clear stand for months, eventually clarified that it supported the high court judgment and would not appeal against it.

One key problem in the case has been in ascertaining what goes “against the order of nature”. Yesterday, Justices G.S. Singhvi and S.J. Mukhopadhyaya had asked Vahanvati to explain what “the order of nature” meant.

Vahanvati today said that what was considered “against the order of nature” in 1860 might not necessarily be deemed so now.

“There are so many aspects of modern-day life which, by reason of technological, scientific and medical advances, have already drastically altered the view as to what constitutes the order of nature,” he said.

“For instance, surrogacy, IVF, cloning, genetic modification of seeds, stem cell research, different methods of contraception....”

Lawyer Amarendra Saran argued for the Delhi Commission for Protection of Child Rights, which has challenged the high court judgment. Child rights activists say Section 377 has been the bulwark against the sexual abuse of children.

“Courts have limited power in deciding the vires (scope) of a criminal law as far as criminalising a particular conduct is concerned,” Saran said, arguing this was primarily Parliament’s job.

Justice Singhvi observed: “This is a case in which the executive has come forward asking the court to do the duty of Parliament.”

Saran retorted that the court could have refused to deal with it. “This kind of delegation of power is not permitted under the Constitution. Division of power among the three wings of the state has been clearly defined. The government can’t thrust it on the court,” he said.

Arguments will continue on March 26.

The government had long been ambivalent on the matter because of differences between the home and health ministries.