New Delhi: A
government lawyer has said homosexuality is “immoral” and HIV leads to
homosexuality, triggering an astounding exchange with the Supreme Court
and prompting a home ministry scramble to distance itself from his
The government has sought to wash its hands
of the inexplicable assertions in the court but at their root lies the
home ministry’s refusal to take a stand, unlike the health ministry that
has said homosexuality should be legalised.
The government as a
whole has been tiptoeing around the issue, keeping in mind the
reservations expressed by sections of clerics from various religions and
hoping that the court will bail it out by taking a decision. The inherent
pitfalls in such a policy were exposed today in the court. Additional
solicitor-general PP Malhotra made the remarks that sparked outrage but
the capacity in which he made them was shrouded in some confusion.
Malhotra told the court, which is hearing an appeal against a Delhi High
Court verdict that decriminalised consensual adult acts, that he was
representing the home ministry.
The confusion crept in because
the court had earlier asked the attorney-general to assist the judges or
suggest alternative names. Such an assisting officer presents different
viewpoints on the law involved and leaves it to the court to make up its
mind. The attorney-general has been preoccupied with a spate of other
cases such as 2G.
When Malhotra stood up in court today, many
assumed he would assist the court. However, since the court has not yet
finalised such a person, Malhotra was technically representing the
government. Malhotra told the bench of Justices G.S. Singhvi and S.J.
Mukhopadhyay that he would be representing the home ministry and the Union
government in the case. Although Malhotra, 72, said he was “old
school” and was “ignorant” of such issues as homosexuality, he kept
insisting that homosexuality was immoral and against nature.
ministry sources later claimed that they were “perplexed” by his
comments, though Malhotra has been part of a pool of additional
solicitors-general (government law officers) for over two decades.
Malhotra told the apex court that the high court order legalising
homosexuality was not in tune with the country’s “cultural
Reviving the old line the home ministry had once
toed before the high court, he insisted that statistics showed the
incidence of HIV/AIDS was high among gay men. Asked to cite the
statistics, he said that while it was over eight per cent in the gay
community, who total an estimated 25 lakh, it was less than 1 per cent in
the general populace.
Justice Singhvi contested this, saying that
in absolute terms, it meant that only 2 lakh homosexuals had HIV but at
least 98 lakh others too had the virus. Malhotra countered with a claim
that has so far not been supported by medical science: “HIV causes
homosexuality and I will prove it.”
(A senior doctor who has
treated HIV patients for more than 18 years later told The Telegraph
that the lawyer’s statement reflected “absolute ignorance”. “This
only shows that there are some people who go about in absolute ignorance
of both HIV and homosexuality,” said Raj Harjani, director of the HIV
and AIDS research centre at the Rajiv Gandhi Medical College in Thane.)
Supreme Court bench urged Malhotra not to argue on these lines. “We are
not dealing with homosexuality. We are only dealing with whether Section
377 suffers from the vice of unconstitutionality,” Justice Singhvi said.
The Indian Penal Code’s Section 377, which criminalises sexual activity
against “the order of nature”, has been used by police to harass
homosexuals. The Delhi High Court order had kept adult consensual acts out
of the purview of Section 377, thus offering protection to homosexuals.
Singhvi sought the basis of the claim that HIV incidence was higher among
homosexuals. “What is your sample base? Has there been any all-India
study?” Justice Mukhopadhyay said the incidence of HIV/AIDS was high in
Andhra, Maharashtra, and Tamil Nadu because of the heavy presence of
“Why should you link HIV/AIDS to
homosexuals?” Justice Singhvi asked. “You are emphasising too much on
homosexuals,” he said. Malhotra claimed that every society had different
cultural standards. The law, he said, only reflected standards of public
morality. “The UoI (Union of India) submits that law does not run
separate from but along public perceptions,” he said.
bench asked: “The law was enacted in 1860. So is it Indian standards of
morality or the conservative British morality we are talking about?”
Malhotra said the IPC was based on “public morality” and expressed the
“will of the people”. He said the law had existed for over 60 years
even in independent India. The bench wondered why Parliament had not
tightened other provisions relating to sexual offences and deleted Section
As Malhotra paused during the court’s afternoon recess,
the home ministry issued a statement denying that it had taken any
position on “homosexuality”. “The ministry of home affairs has not
taken any position on homosexuality. The ministry has also not given any
instruction apart from conveying the decision of the cabinet,” it said.
The cabinet had decided that the Centre may not move the Supreme Court
against the judgment.
The ministry said the attorney-general had
been asked only to assist the apex court. As soon as Malhotra ended his
submission, another additional solicitor-general said the Centre was not
taking any stand. But the court refused to take cognisance of it. The
hearing will continue.