Section 377: When two ministries took opposite stands

“A rather peculiar feature of this case is that completely contradictory affidavits have been filed by two wings of Union of India. The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts,” Justice Shah said.

READ | Section 377 is Victorian morality, strike it down: petitions in SC

In its affidavit, filed through Director (Judicial), the MHA justified the retention of Section 377, saying it had been “been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality”. The MHA said Section 377 is “necessary” since the deletion thereof “would well open flood gates of delinquent behaviour and can possibly be misconstrued as providing unfettered licence for homosexuality”.

“Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality. Making out a case in favour of retention of Section 377 IPC in the shape it stands at present, Union of India relies on the arguments of public morality, public health and healthy environment claiming that Section 377 IPC serves the purpose,” the order stated.

READ | What is Section 377 of the IPC?

P P Malhotra, then Additional Solicitor General appeared on behalf of the MHA before the Supreme Court during the appeal. The Supreme Court noted: “Learned Additional Solicitor General submitted that the legislature, which represents the will of the people, has decided not to delete and it is not for the Court to import the extra-ordinary moral values and thrust the same upon the society. He emphasized that even after 60 years of independence, Parliament has not thought it proper to delete or amend Section 377 IPC and there is no warrant for the High Court to have declared the provision as ultra vires Articles 14,15 and 21 of the Constitution.”

In the Delhi High Court, the Centre had relied on the reports of the Law Commission of India, particularly on the issue whether or not to retain Section 377 IPC. It referred to the 42nd report of the Commission where it was observed that “Indian society by and large disapproved of homosexuality, which disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private”.

READ | Centre takes no stand on consensual gay sex

In the Supreme Court, ASG Malhotra had also argued that “Law Commission had recommended retention of Section 377 IPC because the societal disapproval thereof was very strong”.

But the National Aids Control Organisation (NACO), a department under the MH&FW, told the Delhi High Court that “the groups identified to be at greater risk of acquiring and transmitting HIV infection due to a high level of risky behaviour and insufficient capacity or power for decision making to protect themselves from infection, generally described as ‘High Risk Groups’ (HRG), broadly include men who have sex with men (MSM)”.

It had also submitted that in January 2006, it was estimated that there were about 25 lakh MSM; and that more than 8 per cent of the population of MSM is infected by HIV while the HIV prevalence among the general population is estimated to be less than 1 per cent.

Pointing to the data, NACO told the High Court that “those in the High Risk Group are mostly reluctant to reveal same sex behaviour due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them”.

The same argument was made before the Supreme Court by ASG Mohan Jain who, appearing for MH&FW, argued that “because of their risky sexual behaviour, MSM and female sex workers are at a high risk of getting HIV/AIDS as compared to normal human beings”.

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