India court criticises 'shifting stand' on gay sex

Gay rights activists in India
Image caption The 148-year-old colonial law was overturned in 2009

India's Supreme Court has criticised the government for its shifting stand on the issue of decriminalising homosexuality.

The health ministry says it supports a 2009 Delhi High Court order decriminalising gay sex.

But last week, senior government lawyer PP Malhotra told the Supreme Court that homosexuality was immoral.

Within hours, the home ministry disowned the lawyer's statement and said he had read from the wrong file.

The Delhi High Court ruling in 2009 overturned a 148-year-old colonial law which described a same-sex relationship as an "unnatural offence".

The Supreme Court is hearing challenges from groups opposing the new law.

"Don't make a mockery of the system and don't waste the court's time," the Supreme Court judges told the government on Tuesday.

Earlier, the health ministry told the court that there was "no error in decriminalising gay sex".

Last week, Additional Solicitor General PP Malhotra raised eyebrows with his statement in court: "Gay sex is highly immoral and against social order and there is high chance of spreading of diseases through such acts."

He said that India could not imitate Western practices.

But it turned out he had been reading an old statement delivered before the 2009 judgment. The home ministry said there had been a "miscommunication".

The 2009 ruling was welcomed by India's gay community, which said the judgement would help protect them from harassment and persecution.

But political, social and religious groups want the colonial-era law reinstated.

'What is unnatural sex?'

Many people in India still regard same-sex relationships as illegitimate, but rights groups have long argued that the law contravened human rights.

Section 377 of the colonial Indian Penal Code defined homosexual acts as "carnal intercourse against the order of nature" and made them illegal.

But the Delhi High Court said the colonial-era law was discriminatory and gay sex between consenting adults should not be treated as a crime. Until the high court ruling, homosexual acts were punishable by a 10-year prison term.

Earlier this month the Supreme Court began a debate on the legality of decriminalising gay sex in private between consenting adults.

The court asked groups challenging the judgement to define "unnatural sex".

"So who is the expert to say what is 'unnatural sex'? The meaning of the word has never been constant," Justices GS Singhvi and SJ Mukhopadhyaya asked a petitioner who challenged the judgement.

"We have travelled a distance of 60 years. Now it is test-tube babies, surrogate mothers. They are called discoveries. Is it in the order of nature? Is there carnal intercourse?" the judges asked.

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