A homosexual act between two consenting adults in private won't be an offence in India if the Delhi High Court hearing the gay rights case ultimately accepts the view expressed in the Home Ministry's affidavit.
The hearing has so far brought to the fore the contradictions within the Centre with the Home and Health Ministries taking divergent stands. Now it emerges that there is no unanimity within the Home Ministry too. What the Home Ministry counsel has submitted before the court so far is at complete variance with its affidavit filed in the court.
Stiffly opposing tampering with Section 377(punishment for indulging in unnatural sex) of the Indian Penal Code, even to allow a consensual act, Additional Solicitor General P.P. Malhotra, appearing for the Home Ministry, has been terming homosexuality a “disease”, an “act against the order of nature… which will result in rapid spread of AIDS and result in chaos and devastate society” and “completely unacceptable to Indian society and religions worldwide”.
But the affidavit filed by the ministry’s director (judicial) Venugopal V., a copy of which is with HT, states: “The basic thrust in the argument of pro-gay activists is the perceived violation of fundamental liberties guaranteed in Article 19 of the Constitution (right to freedom). However, there is no violation of fundamental liberty as long as any act of homosexuality/lesbianism is practised between two consenting adults in privacy, as in the case of heterosexuality.” It also makes it clear that the “provision of IPC Section 377 becomes operational only when there is a complaint to the police of either sodomosing or buggering”.
Throwing his weight behind the affidavit, Law Minister H.R. Bhardwaj said: “Whatever the Home Ministry has said in its affidavit is the stand of the central government.”
A senior Law Ministry official said law enforcing agencies “do not interfere and are not opposed to anything being done by consenting adults in privacy”. The official said the government’s main concern is to ensure Section 377 acts as a deterrent against paedophilia, and all other matters are secondary.
The Home Ministry made these statements in response to the contention that the section is a weapon for the police to abuse and is preventing intervention under the National AIDS control programme. Denying harassment of homosexuals using the penal provision, the affidavit says: “Studies of criminal jurisprudence of section 377 reveal that in India, it has been basically used to punish sexual abuse of children and to compliment lacunae in rape laws. It has rarely been used to punish homosexual behaviour.”
But opposing decriminalization of homosexual acts in public, the affidavit says: “If the provision is taken out of the statute book, a public display of such affection would at the most attract charges of indecent exposure which carry a lesser jail sentence than the existing imprisonment for life or 10 years.”