The Delhi High Court said that problem of HIV cannot be solved by curbing gay sex and pulled up the Centre for seeking the retention of penal provisions against homosexuality on this ground."Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV," a bench comprising Chief Justice A P Shah and Justice S Muralidhar observed when the government contended that homosexuality spreads the disease."If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease, the court said.The court objected to the contention of Additional Solicitor General P P Malhotra that the Home Ministry's affidavit, on which the government is relying, does not say any thing on this aspect."It's a strange situation. Your first affidavit (Home Ministry's) is silent. There is not a single word on what you are saying while other affidavit (Health Ministry's) is pointing out that the penal provision leads to marginalisation of HIV patients," the court said."How would the court decide the matter. Has there been any empirical study done by the government to substantiate its stand," the court said.It said that a special law should be made to provide proper care and treatment to HIV patients like other countries."Unlike other countries we have not brought any special laws for people suffering from the disease on the pretext that penal provision under Indian Penal Code is sufficient," it said. Putting forward the Centre's view, the Additional Solicitor General said that gay sex is a threat to society and it could not be decriminalised."Right to health of few persons cannot supersede Right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there," Malhotra said.The court was hearing a PIL filed by gay rights activists seeking courts direction to amend Section 377 of Indian Penal Code by decriminalising gay sex among consenting adults in private.The IPC at present holds an homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.Earlier, gay rights activists had contended that the government, by decriminalising homosexual acts, is infringing upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality."The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated," they had contended on ThursdayThe IPC at present holds homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts."Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex," the activists had said adding that gays in the country don't have full "moral" citizenship and they are being treated as second class citizens.
