The Delhi High Court has taken a strong exception to the Centre's contention that the court would divide the country if it recognises homosexuals as a minority group.
A Bench headed by Chief Justice AP Shah said that the government is virtually accusing the court of dividing the country which cannot be part of an argument.
"These are not arguments but comments on us. You are saying that we are dividing the nation by saying that they belong to minority group and then you are also saying that we are encouraging such practises," the Bench said.
The Court's remarks came when Additional Solicitor General PP Malhotra contended that if gays are considered as minority in the country then many such small groups having peculiar characteristics would claim to belong to minority group which would further divide the country.
"Is it a false statement to say that people suffering from leprosy or any other dreaded diseases do not belong to a minority group. If you are not prepared to see it then we cannot help it. Sexual minority means a group of people having different sexual preferences. Are we dividing the nation by calling them minority," the Court observed.
The Bench referred to the affidavit filed by the NACO on behalf of health ministry which admitted that the gay community is a minority community being harassed for their different sexual preferences.
"Is the recognition of Men Having Sex with Men (MSM) by the Health Ministry a reality or fiction. Is such group exists if yes then why cannot they be put in a group on the basis of their characteristics," the Court said.
Malhotra, while putting forward the views of the government, contended that decriminalising gay sex would lead to spread of HIV infection.
"Once it (gay sex) is legalised then no one would think twice before indulging in such acts," Malhotra said while justifying the criminal provision against gay sex.
Malhotra was responding to a PIL filed by gay rights activists seeking to amend the penal provisions by legalising gay sex among consenting adults in private.
At present homosexuality is an offence under Indian Penal Code and Section 377 of the Act provides punishment upto life imprisonment for indulging in such acts.
The government, while countering the arguments of the activists, said that the penal provision has not been used even once for prosecuting adults indulging in such acts and it is used only to protect child from sexual exploitation.
The court, however, was not satisfied by the government's contention saying that Section 377 is needed to curb the spread of AIDS.
"When the penal provision has not been used then how can you say it has contained the spread of the disease," the court said.
The Court then asked the government whether a gay can be denied government job on the ground of his sexual preferences.
The ASG replied that as per the Supreme Court judgement such a person cannot be deprived a job.
"How can you (Centre) then say that they are committing an offence (by indulging in gay sex). How can you then justify (an alleged) criminal getting government employment," the court said.
Earlier, the gay rights activists had contended that the government is infringing upon their fundamental right to equality by criminalising 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.
Earlier, while hearing the case, the High Court had observed that the 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," the Court had said 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 had said.