A nonprofit has challenged the law that makes even consensual sex among persons of the same sex punishable, but the federal government is unable to make up its mind on whether the law should remain or be repealed.
The Home Minister seems to believe that in a conservative society like India's, it would be counterproductive to legalize any deviant form of sex, but the Health Minister is pitching for the repeal of the law, arguing that it can help in better treatment of people suffering from HIV/AIDS.
The counsels of the two ministries have been taking contradictory stands in the court, causing a lot of avoidable embarrassment to the government.
On Wednesday, the Delhi High Court, while hearing a Public Interest Litigation challenging the legality of Section 377 of the Indian Penal Code, had pulled up the Centre for relying on religious texts to justify the prohibition on gay sex in the country. The Court asked the government to instead come up with scientific reports to justify it.
The section states: "Whoever unnaturally has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of life or with imprisonment of description for a term which may be extended to ten years and shall also be liable to fine."
When additional solicitor general P P Malhotra, appearing for the Centre, cited an article which contained quotes from religious texts to justify the ban, the bench, headed by Chief Justice A P Shah, reacted sharply, saying, ''This is just a one-sided version of a religious body which cannot be relied upon. This is part of a religious doctrine. Show us some scientific report which says that gay sex should be criminalized."
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.
When the matter came up before the federal cabinet Thursday, the Prime Minister seemed to have sidestepped the question altogether.
Science and Technology Minister Kapil Sibal, who briefed the media later. said while the two ministers would have to sit down and thrash it out among themselves, the government would accept whatever ruling the courts handed down on the issue.