MHA justifies retention of Section 377, but Health Ministry cites NACO studies
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During the hearing, the High Court found two contradictory stands taken by the Government of India, in the form of contrasting affidavits filed by its two ministries. While the Ministry of Home Affairs sought to justify the retention of Section 377, the Ministry of Health and Family Welfare insisted that continuance of this penal provision has hampered the HIV prevention efforts. The MHA reasoned that this Section has been "generally invoked in cases of allegations of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality." In the first innings of the UPA government, the Home Ministry justified retaining Section 377 as it contended this has been particularly invoked "in cases of assault where bodily harm is caused".
While the Home Ministry cited public morality as its prime argument, the Ministry of Health, relying on extensive material and studies, contended reading down Section 377 on grounds of public health. While according to MHA, the Indian society is yet to demonstrate willingness to show greater tolerance to practices of homosexuality, the Health Ministry, through National AIDS Control Organization argued that homosexual community is particularly susceptible to attracting HIV/AIDS in which view a number of initiatives have been taken by NACO to ensure that proper HIV intervention and prevention efforts are made available to the said section of the society by, amongst other things, protecting and promoting their rights.