HC: Can’t rely on religious texts to criminalize gay sex

Incidents like these often make me wonder, what would have become of this nation if it wasn’t for the judiciary? As usual people in power have forgotten India is a “secular” nation, and have brought in religious texts justify ban on gay sex! So, does the government recognize that these texts are the ultimate source from which we should derive our morality? If so, it’s alarming indeed, the threat this poses to the secular nature of this nation shouldn’t be underestimated. Thanks to the judiciary for reminding our “politicians” that this nation is not run on the authority of any religious text!

From TOI [16th October 2008]:

NEW DELHI: Testing the government’s logic justifying ban on homosexuality, Delhi HC asked it to table evidence that AIDS had spread in countries where homosexuality has been decriminalised.

A division bench comprising Chief Justice A P Shah and Justice S Muralidhar also pulled up the Centre for relying on religious texts to justify the prohibition on consensual sex between adults of same sex. “We won’t be first country to decriminalise in case we do. Show us AIDS has spread where homosexuality has been decriminalised. Place some authentic study like one backed by UN,” HC said.

The court’s remarks came when the additional solicitor general P P Malhotra cited an article condemning gay sex which was religious in nature and in which racial profiling had been done to arrive at conclusions. “We should not accept religious literature instead of scientific report. In a secualar country how can a government rely on a report which says that certain races contribute more to homosexuality?,” the bench remarked, adding, “These are not scientific reports. This is a propaganda. Your arguments should be based on scientific reports. Show us scientific reports which justify criminalisation of such acts.”

Asking the government to place before it the reports of the World Health Organisation on the issue of health hazards arising out of criminalisation of gay sex the bench noted that UN health reports supported what Naco said in its affidavit. “To counter Naco report give us some scientific report,” it added.

The National Aids Control Organisation, in its affidavit filed on behalf of Union health ministry, had said that gay sex among consenting adults should be decriminalised. The court observed that if the government goes by the religious text referred by it then all such people (homosexuals) in the country would be put behind the bars. “Then you should put all the 25-30 lakh such people behind the bars. This is just one sided version of a religious body. This is a part of religious doctrine which cannot be relied upon.”

Referring to Naco report, the court said that right to health is a fundamental right which cannot be denied to any one and the government has to justify criminalisation of gay sex which may pose health hazards to such people. “There is no doubt that they are high risk group, so you have to prove that allowing gay sex among consenting adults would increase the risk of HIV to an extent to criminalise it,” the court said.

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