Gay sex ruling runs into morality hurdle

Gay sex ruling runs into morality hurdle

By: || Updated: 01 Mar 2012 01:49 AM


New Delhi: Organisations representing Hindus, Muslims and
Christians today objected to the Delhi High Court order legalising
consensual homosexual behaviour in private on the grounds that it was
“immoral” and against “religion” and “majoritarian sexual
morality”.

Opening arguments in the Supreme Court in a batch of
appeals against the order that kept all adult consensual sex in private
out of the ambit of Section 377 of the Indian Penal Code, the Krantikari
Manuvadi Morcha Party argued that laws were a reflection of a society’s
moral standards. Societal morality and discipline was maintained by
Parliament by framing laws, said Morcha lawyer Sushil Jain, who concluded
his arguments today.

Adultery, sati and dowry were crimes because
Parliament has enacted laws to prohibit them, Jain said, pointing out that
sati was outlawed despite sati temples flourishing all around.
“Ultimately Parliament has to see what is wrong and what is good for the
society,” the Morcha said, also citing the anti-dowry and anti-narcotics
laws as an expression of societal morality through Parliament.

The
Morcha, which has been arguing for the past few days, cited the example of
an earlier challenge to Section 498A of the IPC (the anti-dowry law) that
fell through because the courts rejected the theory that misuse of a law
could be a reason to strike it down.

Justice G.S. Singhvi,
sitting alongside Justice S.J. Mukhopadhyaya, however, pointed out that in
this instance the state had admitted to harassment of the gay community by
police. Jain said harassment could be said to be a failure of the
machinery and not a failure of the law. “By that logic, the whole of the
IPC is being misused by police every day, it should be struck down,” he
contended.

Justice Singhvi countered this saying: “If the state
admits that the IPC is being misused, we can consider that.” The Morcha
lawyer then argued that the harassment claim was not backed by any data.
He also said Section 377 had once been amended by Parliament and every
issue involved examined by the House.

After Jain had concluded,
the Utkal Christian Council and the Apostolic Churches’ Alliance argued
that Section 377 only targeted sexual activities and not people. They
pointed out that sodomy was still a ground for divorce in many personal
laws. Legalising gay sex, they feared, would lead to same-sex marriages
and same-sex families.

Justice Singhvi intervened to say that
things were changing at a very fast pace. He cited the example of the Sikh
Gurudwara Act enacted by the British which described anybody drinking
alcohol as “patit” or “fallen”. “By those standards, how many of
us will now be patits?” the judge asked.

The All India Muslim
Personal Law, through lawyer Huzfaa Ahmadi, objected to the government’s
attempts to be neutral. Huzffa said: “It is the government’s
constitutional obligation to defend the law. It cannot say that it will
not take a stand.”

At this point, Justice Singhvi took a dig at
the government: “This is a new phenomena. I will be neutral; I will not
defend the law.” The government has sought the court’s permission to
take a neutral position on Section 377, but has not yet been allowed to do
so.

Huzfaa also pointed out that homosexuality was a crime in at
least 76 countries. “Promotion of majoritarian sexual morality is
legitimate state interest,” he said, citing a US judgment. The logic to
justify homosexual behaviour — that it was adult, consensual behaviour
in private — could be used to also validate incest and group sex, the
lawyer said.

At the close of arguments today, Justice Singhvi
sought information from the health ministry on the NGOs it enlists for
controlling AIDS/HIV. The bench also directed a senior health ministry
official to be present in the court tomorrow to present comprehensive
statistics on the number of HIV-affected people in the country.





-The Telegraph, Calcutta




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