Disapproving of gay sex as highly “immoral” and “against social order”, the Union Home Ministry on Thursday strongly opposed its decriminalisation before the Supreme Court.
Additional Solicitor-General (ASG) P.P. Malhotra, appearing for the Ministry, argued that the Indian society is different from other countries and it cannot imitate the practices prevailing in foreign countries.
“Gay sex is highly immoral and against social order and there is high chance of spreading of diseases through such acts,” ASG Malhotra contended before a Bench of Justices G.S Singhvi and S.J. Mukhopadhaya.
“Our Constitution is different and our moral and social values are also different from other countries, so we cannot follow them,” the ASG said, adding that societal disapproval of gay sex is strong enough reason to criminalise it.
Indian society disapproves of homosexuality and law cannot run separately from the society, he contended while opposing the Delhi High Court’s order, which had in 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC).
Section 377 (unnatural offences) of the IPC makes gay sex a criminal offence entailing a maximum punishable of life imprisonment.
Earlier, the Bench had said that homosexuality should be seen in the context of changing society as many things, which were earlier unacceptable have become acceptable with passage of time. The Bench had referred to the recent phenomena of live-in relationship, single parent and surrogacy.
The Supreme Court is hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations, who have opposed the High Court verdict decriminalising homosexual behaviour.
The High Court judgement had sparked a controversy and several political, social and religious outfits have asked the Supreme Court to give the final verdict on the issue. Senior BJP leader B.P. Singhal, who had opposed in the High Court legalisation of gay sex, has challenged the verdict in the Supreme Court, saying such acts are illegal, immoral and against ethos of Indian culture.
Keywords: homosexuality, LGBT
The morality related to Homosexual acts is not based on Indian culture. It is an aberration
came about by the inculcation of dominant foreign cultures that prevailed for long until not
too long ago. If you peruse the Hindu mythology, such acts are described, even with the
prominent Gods. The Hari-Hara suthan Aiyappa was born out of such a union!
Homosexuality has to be seen as a nature's aberration and not a deviant act of immorality.
It is very sad to see that people even today in the information age think that being gay is some kind of an attitude or mental disorder or criminal offence. I have no affiliation with it however as a person of science I can categorically say that gay is not a choice nor is it a mental disorder. Indian religion has always accepted gays as even Shiva is depicted as Ardhanarreshvara or a transsexual form in many a hindu scripture. those people here who have called it a s what so ever should go back to their religious books and read them again. Gayness cant be forced nor can it be chosen just like heterosexuals cant choose to be so. This criminality has come from ancient British law reflecting bible story of sodom and gommorrah. Islam also has roots in similar stories. If Hindus are true hindus they would not follow these archeic British laws and follow the true meaning of Hinduism which tolerated various forms of life such as Hanuman Sugreeva Ganesha etc as different forms of life.
A large number of differing views expressed before the courts is faceless. Such important ones must mention the highest authority by designation and the person by name who is actually responsible for taking the stand. Otherwise the parties can keep disowning and shifting the stand all the time. This will also help the public to form their opinion about the person concerned. Also the courts should seek in such matters the opinion of the largest number of groups of people. Say what about the various great people, parties and organizations who cleverly keep silent? I feel even the bench that is hearing the matter should be larger since cultural, heritage and traditional values of a country are involved.
government “learnt and subsequently got enlightened” from the Delhi
High Court verdict. - So was the High Court judgement not available to
the govt when the HM filed the review petition in the SC? Or is the Govt in the habit of filing review petitions without knowing what they are petitioning against? Or has the govt been caught sucking its thumb till a public backlash forced it to act? Even more disturbingly, seems that the govt ministries are out of sync. The Home Ministry and the Health Ministry were poles apart in their stand. Isn't this suggestive of a fractured govt in complete chaos?
Shenoi- From where did "Western countries" come into this? The thing is about gays in India, and the fight is to remove a medieval draconian legislation from Indian Law that seeks to challenge a work of nature. Aren't you capable of thinking independently? Where did this "forced to accept" thing come from? Its not as if people are being forced into gay sex. Expunging Sec 377 will only "force" you to accept gays as part and parcel of society, just the same as heterosexuals are. Fazal- See its like this. There is no scientific study claiming gay sex as abnormal.Majority wins- applying the same logic, should the govt's Haj subsidy policy be subject to a national referendum? No-one is being forced to be gay, so where does this question of being "robbed" arise? Since when did the law start protecting your "thoughts"?
I'm happy and impressed at the quality of the readers of Hindu.
Thankfully only a minority are stuck in prejudiced mindsets. There is
published research out there as pointed by RTK with evidence on how
'natural' homosexuality is.
As a strong believer of liberty, I would say that even if it is
unnatural, it is the choice of consenting adults on how to live their
lives as long as they don't hurt anybody and no one else should not
interfere.
@Shenoi - "The union rules and regulations should be based on
what the majority of the society wants".
Oh Dear! The majority/minority bogey again. It does not matter at all
what the majority thinks on this issue because it has no right to
enforce its belief on others. Why? Because India is founded on SECULAR
principles and that makes it so. Majority/Minority is only relevant
when voting to choose the government. What the majority thinks is not
relevant to law, it is not relevant to the principles outlined in our
constitution. For example, it does not matter if the majority of
Hindus in the nation think that eating meat is immoral. They cannot
impose that religious value on the rest of society.
Last year, the courts ruled that criminalizing homosexuality was a
violation of the fundamental right to choose one's sexuality which is
a right guaranteed by the constitution to all citizens. So what the
majority thinks doesn't matter.
Homosexuality is normal, It's existed from the dawn of mankind , how the hell is it considered unnatural? It's depicted in Hindu scriptures before the British Colonial era, it is found in nature (Look it up if you are shocked), there has been recorded history on it from ancient times. What more is required for it to be deemed "Normal" ? Because of prejudiced upbringing and treating practically every third thing as taboo it is quite pathetic the majority imposes its way on everyone.
Dolphins have sex without the purpose of procreation too let's make rules against it. And I'm sure a lot of consenting adults don't have sex for the sole purpose of procreation. It is terribly hypocritical on society and homophobes in general with their arguments against homosexuality. AIDS? I hope people understand that Aids is prevalent in India and Africa so much because of the fact Homosexuality is criminalized.
See it's like this. 1.2 billion population. Out of recorded 1.2 billion population how many homosexuals are there?. So naturally what ends up winning is the majority. I am not biased against Homosexuals/ nor do i think they are different. It's just that if everybody wants to drink water and be content, why should the law provide for cranberry juice to the homosexuals at the cost of the majority's ire, the same majority will be deprived of their collective thought and in turn be robbed of what is proven normal over several millenia. For natures sake, even those who claim to be "different" were born the "natural" way !
For once I support the Govt. Its not like a maths law to be accepted
by the society. The union rules and regulations should be based on
what the majority of the society wants and I think we are civilized
enough to accept some reasonable things. Homosexuality is a thing
which is still debated. Though it is accepted practice in some western
nations we should not be forced to accept it. See a recent example in
Norway where the children were taken away from the parents. This shows
the difference in culture. Infact most of us see that law in Norway as
intrusion in private life and somewhat dystopian. The thing has to be
proven beyond doubt, which I doubt it will be as we see most of the so
called 'self confessed' ones are celebrities or publicity seekers. I
am not accusing ALL of them. But MOST of them. So lets see what future
has in store. As of now, I am against it and I think its my right to
oppose it unless it is proven beyond doubt.[Though even proven laws
can change in course of time]
One of the basic rights granted to every citizen is 'Equal rights'. "Immorality" cannot be basis for treating one as a second class citizen, and also punishing them. 1. Some Hindus view eating non veg food is immoral. Should non vegetarians be jailed? 2. Muslims view eating eating pork as immoral. Should pork eaters be jailed? 3. Some people view divorce as immoral. Should divorcees be jailed?
Immorality is in the eye of the beholder. Just because a majority of people consider an act immoral does not make it illegal and punishable.
Common sense and not collective interpretation of societal morality decides the course of law.
It sickens my stomach when some readers trumpet their ignorance and bigotry.
Homosexuality is not a choice or life style! If it really was a choice, then I am sure even the heterosexuals will choose to be gay! Although it doesn't suprise me that neither the government nor the people are gonna give up on their hypocritical stance on this issue, i hope they will wake up someday and realize its the life of innocent people that is at stake!
Sex can also be for pleasure, not only for having children, because
then abortion would have been illegal in India too. Glorification
isn't the issue here. Its about following medieval norms that are by
no means representative of Indian "culture" and using them to suppress
the biological needs of a section of society.
In Indian culture men wore uttariyas, at times jewelry. Student life
was all about studying. Women could be priests, had prestige and were
not baby producers. How much of that culture do you know about and
follow, dear "One God"? What is this God that you speak of?
To those claiming that homosexuality is not natural, Firstly, the mere fact that it exists in human beings and many animals naturally is proof that nature "wants" it. If, as you claim, it is not natural, are you suggesting that being gay is a choice? In that case, when did you make the choice to be straight? Secondly, if the only purpose of sex is reproduction, then shouldn't the government ban all forms of sex which does not lead to reproduction (straight sex included)?
Homosexuality is natural. For a scientific perspective on this topic I refer the readers to a great review : Trends Ecol Evol. 2009 Aug;24(8):439-446 - Same-sex sexual behavior and evolution. Bailey NW, Zuk M.
@Abhinav - "Gay sex is totally wrong. It should be banned completely.We should think with our open mind and then comment on these affairs"
So that's settled then. Is that your final word on that matter, Sir? Or perhaps there is some slight room for debate. Maybe you could explain your convictions to the rest of us by providing a semblance of evidence? Does is not bother you, for example, that almost all of the educated world doesn't agree with your views? Does that perturb you even slightly? Perhaps not.
@Anand - "Gay sex is not natural". How exactly do you define natural?
Sure, homosexuality is practiced only by a minority, but as several people have pointed out, so is left handedness. How then do you say that something is not of nature? Do homosexuals come from some parallel universe? You say "Sex existed for one reason only - reproduction". Yes the evolutionary rationale for sex is reproduction, but that does not mean that humans are constrained to using sex only for that purpose. Eating food is for survival. But does it mean that every time you were to eat a sweet should I call that act immoral because the sweet is going towards pleasure and not survival as nature intended?? Should couples not make love on those occasions when getting pregnant is not the motive?
‘Gay sex "is highly immoral and against the social order," additional solicitor general PP Malhotra, who is representing the Centre, told the apex court on Thursday. He added that it was "against nature and spreads HIV."’ The HM is taking a populist stance, which is undermining the right of minority groups and the spirit of the constitution. Before pleading his case the Additional Solicitor-General should get his fact straight. Otherwise it gives a very bad picture of our country.
I would rather like to ignore his lack of latest scientific information. He may be too busy earning his bread to read relevant books on the topic. I don't really understand what the ASG means by the phrase, ‘against nature.’ It may stand for two different things: (a) Homosexuality is not there in the natural world and is a result of human intervention. (b) Sex is for 'procreation' and a homosexual act, not being able to procreate, is against nature. With regard to (a) above I would humbly say again that the ASG should get his facts straight. Even an elementary knowledge of biology of the species can reveal how rampant homosexuality in nature is. With regard to (b) I would like to ask the otherwise learned ASG if he is also going to plea for a ban on all sexual activities that do not aim at procreation. The consequences are manifold, right from policing on the intimate conjugal life of married couples to imposing a ban on condoms and contraceptives in the country. Please think twice if you are also going to accept these consequences before you proceed!
Im quite sure heterosexual sex also transmits HIV, syphillis, chlamydia, gonorrhea, and HPV. To suggest these diseases are only transmitted by homosexual sex is a gross distortion of reality.
Srivatsan, you said, "the law makers and other highly placed people would understand that homosexuality is a mental disorder"
Citation needed. Also, why doesn't your notion that "homosexuality is a mental disorder" apply to heterosexuality too?
Anand, you said,
"Let them not corrupt the new generation at least - stop giving ideas to young children."
Well, they can't. Homosexuality, like heterosexuality, is a natural condition. All the available evidence suggests that you can't "become" heterosexual or homosexual. You just are. It is somewhat like left-handedness vs right-handedness.
Gay sex is "Highly immoral" - is this ASG Malhotra's view or is it the view of the Home Minister himself? Before making such an archaic point of view public, the Ministry should have debated the implications internally and only then put forth a view before the Supreme Court. Unfortunately, issues of morality are not black and white and also not cast in stone. As many of the readers have pointed out, morals do change with time. The Indian Penal Code is a good piece of legislation for the time period it was drafted in. It needs a fresh look in the context of the 21st century.
homosexuality does'nt cause any disease but the unsafe sex (whether
homosexual or hetrosexual)cause stds like aids.so sex education must
be here in india instead of again criminalising gay sex.
supreme court please be with homosexuals this time ,you are hope of
homosexuals..please do not dissapoint gays and enhance thier self-
confidence and give them the feeling that they are not doing something
wrong.gays also want to contribute in the development of india but
first of all make them feel burden free.pls be with homosexuals this
time supreme court.
So the ASG states that India (the largest democracy) is not the
same as other countries. By his statement is he aligning India to
the dictatorial and or repressive countries like Saudi Arabia,
Uganda, Iran et al. Homosexuality has been accepted in India right
through ancient times as part of the fabric of society. One can
even observe it in the animal world. It is the perceived world of
the religionist, nationalist and racialist whose concepts are wed
to these ideas of "high morality". They condemn homosexuality
vociferously perhaps, to hide their own repressed sexuality. How
one perceives love and relationships is none of their
business. There are genuine issues like the myriad of deprivations
of the common person at hand. Address them. Be a genuine hero!
Stop pandering to the ridiculous among us.
in addition to the points raised by other readers, i would, like to
mention that there were several examples of homosexuality in ancient
India. Science has proved that it's no mental disease. Human rights must
be honoured. the govt. shouldn't poke its nose into the personal life of
adult citizens. It is highly unacceptable. this govt. has proved to be a
fiasco in all fields and wants to confuse the ppl.
All I want to say is to each their own but lets not glorify Gays. Let them not corrupt the new generation at least - stop giving ideas to young children. Gay sex is not natural but also lets not classify them as criminals. Sex existed for one reason only - reproduction and if nature wanted it, it would have been possible for males to be pregnant and females to concieve without males which is not the case.
Gay sex is totally wrong. It should be banned completely.We should think
with our open mind and then comment on these affairs.
Srivatsan... homosexuality is just a choice... NOT a disorder.. It doesnt have to be treated or anything..If u cant accept it, just look the other way.
Im completely with Aritra when she talks about other societal perceptions that have been ignored.
Why there is no law on sexual harassment by homosexual similar to
sexual harassment on women?.People who support heterosexuality sex ,did they think they are doing great help to
society.Somebody mentioned that it is mental disorder,so they want to
legalize this act.But people who are heterosexuals doing it for
pleasure,and some people holding important position.They are using
there power to fulfill their desire,then in that case you required law
which claims this act as criminal,come on guys(not to gays) think
practically not like just humanitarian.
ASG is highly immoral says the supreme court.
Just wondering....what diseases is the ASG referring to while calling
gay sex harmful? Dont all these spread in sex of opposites???
"I dont believe in taking gold from the bride at the wedding, but if it is tradition, it is not something I will oppose." This deplorable mindset is all the Ministry is really reflecting. Not only is the statement about gay sex wrong, but also inaccurate in view of Indian culture. There is a lot of evidence of homosexuality being accepted for what it is - natural - by our ancient society. The Ministry and other individuals in this country who believe they have a right to judge the sexual orientation of strangers should first get their science and facts sorted before vocalizing their ignorant comments.
Srivatsan
Please provide a shred of credible evidence that says that homosexuality and not heterosexuality is a mental disorder. Or both.
Archaic mind, thy home is India! Who is the expert on our moral standards? Anybody's sexuality in my opinion is a very personal matter and if we criminalized gay sex, then we should also criminalize sex outside wedlock, which a lot of our politicians will find very uncomfortable to talk about.
We should also criminalize being left handed, since that is also not quite the majority!
Let us think about criminalizing people with six digits in their hands or legs, and let us definitely put in jail people with any sort of contagious disease, since our Home Ministry is scared of spreading diseases, even though many may die out of sheer negligence in government hospitals.
Ethos of Indian culture? That is a laugh and a riot! This Indian culture approved sati (bride burning), still approves dowry, and a whole lot of other social crimes. The Home Ministry is on very low moral ground making claims of morality based on culture. Corruption is also part of our culture! Let's keep it then!
Gay sex is a victim-less crime. Two consulting adults should be left
alone to find and express love as they please and society should not
seek to impose some majoritarian conception of morality on
individuals. The minister seems to believe that tolerance and
acceptance of homosexuality is some foreign import. Let me point out
that even those foreign lands were not so ready to accept
difference. It has come at the end of a long struggle and is a
reflection of the moral zeitgeist. It will be a struggle but we'll
get there in the end and when we do, the above minister's arguments
will be relegated to the dustbin of history.
The Government's stand is very disappointing. We can debate if it is immoral, which I believe it is not, but it certainly should not be considered illegal.
There is societal disapproval of Kasab being allowed to play a cat and
mouse game with us using our own legal system, so why doesn't the HM
stop his trial and hang him outright?
There is societal disapproval of Italian marines opening fire on our
trawlers, so why are we wrangling with the Italians while providing
the marines first class food and lodgings?
There is societal disapproval of those with criminal complaints being
allowed to contest elections, so why are they being allowed to do so?
There was societal approval of mobile service operators offering out-
of-circle services via tie-ups so why was that disallowed?
I have so far kept the "West" out, once I rope them in, these no-
changers look even greater fools. Earlier the US porn industry was
outlawed, but it existed and flourished to a degree while many
pornstars died of untreated AIDS. Now that it is legalized and
regulated, AIDS deaths have come down drastically. Ordinary people
take their cue from these actions. Comprende, HM?
As per the indian culture our society wont accept gay-relationship because it challenges our moral ethics.But with the due course of time some sections of society are changing their their mindset and they are accepting it.
One vote from me for disapproving homosexuality in India. But am wondering about criminalizing this act. I guess, the law makers and other highly placed people would understand that homosexuality is a mental disorder which can be handled with due medical attention! Just criminalizing the act without providing solution to the actual problem will not help the society.
People might get hurt just walking on the streets, so does that mean
that we shouldn't venture out of our houses? Sex of any sort can cause
STD's so why not criminalize sex itself? Gay sex often occurs without
condoms, and that is a major reason why STD's are more prevalent among
gays, not because Indian gods look down upon it.
These pathetic HM people are forgetting that sex isn't the same as
murder or larceny. Irrespective of criminality, people will pursue sex
of their choice. Decriminalizing it would have made these people feel
safe and encouraged them to seek professional help. Section 377 will
only push gays under the radar, and spread the disease. Engagement,
not isolation is the solution to fighting malaise like AIDS. Just
because some individuals want no change is no reason to outlaw
something that is built into some persons. The same Indian society
that the HM wants to appease once wanted widows burnt to death -
certainly not a benchmark to set moral standards by, I would say
Indian society is also against inter-caste marriages and approves of honour killings. It was also against widow re-marriage and women's ownership of property. Our society was significantly different from the liberal ideas that are now guaranteed by the constitution. The Home Ministry's argument is totally wrong.
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