The government on Monday asked the Delhi High Court to ignore the views of its health ministry on removing a penal provision against homosexuality.
Appearing before a division bench of Chief Justice Ajit Prakash Shah, Additional Solicitor General P P Malhotra said: “It does not matter what the minister (Anbumani Ramadoss) and the ministry's affidavit says. It is for the court to decide on the issue.”
The centre's response was to the court pulling it up during Sept 25 hearing for speaking in two voices on the law against homosexuality.
At that time, the government informed the court it was not scrapping the law as the health ministry had suggested. Homosexuality was a "criminal offence" and would "disturb the law and order situation and create unnecessary problems in society", the government told the court.
“If we scrap section 377 of the Indian Penal Code (that makes homosexuality a punishable offence), then it will disturb the law and order situation and might create unnecessary problems in the society,” Malhotra said.
The Indian Penal Code terms homosexual acts an offence under section 377, which provides for punishment of up to life imprisonment for violators.
The government, in its earlier reply, had taken a contradictory stand with the home ministry favouring the retention of Section 377 and the health ministry opposing enforcement of the provision in cases involving consenting adults.
"Indian society strongly disapproves of homosexuality and the 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 said in its affidavit.
"Deletion of the section can open the floodgates for delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts," it had said.
The health ministry, on the other hand, had said: "Enforcement of Section 377 can adversely contribute to pushing persons suffering from HIV underground, which would make such risky sexual practices go unnoticed."
“Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation,” said the affidavit, filed by the National Aids Control Organisation (NACO) that comes under the health ministry.
The government will continue its arguments on Tuesday.