Additional Solicitor General (ASG) P P Malhotra, appearing for the ministry, argued that the Indian society is different from other countries and it cannot imitate the practices prevailing in foreign countries.
"Gay sex is highly immoral and against social order and there is high chances of spreading of diseases through such acts," ASG Malhotra contended before a bench of justices G S Singhvi and S J Mukhopadhaya.
"Our Constitution is different and our moral and social values are also different from other countries, so we cannot follow them," the ASG said, adding that societal disapproval of gay sex is strong enough reason to criminalise it.
Indian society disapproves of homosexuality and law cannot run separately from the society, he contended while opposing the Delhi High Court`s order which had in 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC). Section 377 (unnatural offences) of the IPC makes gay sex a criminal offence entailing a maximum punishable of life imprisonment.
The Supreme Court had on Wednesday queried from anti-gay rights groups, challenging legalisation of gay sex, about the law on homosexuality prevailing in other nations.
The apex court had also asked the anti-gay rights groups to "broaden the canvas" while opposing the high court`s order of decriminalising gay sex and not limit their arguments to only carnal intercourse, since the final verdict on the issue would have wider implications.
The apex court had also asked about the number of cases filed against gay people for indulging in such acts in the country. Earlier, the bench had said that homosexuality should be seen in the context of changing society as many things which were earlier unacceptable have become acceptable with passage of time. The bench had referred to the recent phenomena of live-in relationship, single parent and surrogacy.
The apex court is hearing petitions filed by anti-gay rights activists and also by political, social and religious organisations who have opposed the high court verdict decriminalising homosexual behaviour.
On February 7, 2011 the bench had refused to implead the armed forces in the case.
The high court judgement had sparked a controversy and several political, social and religious outfits have asked the apex court to give the final verdict on the issue.
Senior BJP leader B P Singhal, who had opposed in the high court legalisation of gay sex, has challenged the verdict in the Supreme Court, saying such acts are illegal, immoral and against ethos of Indian culture. Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance have also challenged the high court`s order.
Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal and yoga guru Ramdev have also opposed the verdict in the apex court.