A row between two government departments in India over the decriminalisation of “un-natural” sexual acts has resulted in a victory for those who oppose the change.

The Home ministry has won out over the Health ministry, who are strongly in favour of liberalisation on the grounds that it will help the fight against HIV.

The government will today oppose a petition filed by gay rights activists asking the Delhi High Court to decriminalise homosexual acts between consenting adults.

The government’s position was decided when the law ministry said it was against any change.

“This is a section not merely confined to gay rights, it acts as a deterrent against those with sick minds too,” a law ministry official said.

Debate about Section 377 of the Indian Penal Code, the 148 year old law that criminalises gay sex, has been long and heated.

The law bans “unnatural sex” and theoretically punishes anyone who engages in anal or oral sex with up to ten years in prison:

“Whoever voluntarily has carnal intercourse against the order of nature with another person of the same sex shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine,” it states.

Health Minister Anbumani Ramadoss told an International AIDS Conference in Mexico last month that Section 377 must be repealed.

In the High Court yesterday gay activists said that the ban is a breach of their human rights.

“The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But these rights of 25 lakh (2,500,000) homosexuals in the country are being violated,” advocate Shyam Diwan said.

“Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex.”

Chief Justice A P Shah had earlier questioned the division in the government.

“Two affidavits have been filed by the two ministries,” he said.

“The two ministries are speaking in two voices.

“What is the stand of the government?”

“Men Having Sex with Men are mostly reluctant to reveal same sex behaviour due to fear of law enforcing agencies, pushing the infection underground and making it difficult to access them,” an affidavit from the National Aids Control Organisation to the court said.

NACO is part of the Ministry of Health.

In practice no-one has been prosecuted under the anti-gay law in the past two decades, but it has been used by officials to counter the work of HIV activists in some Indian states.

Gay rights campaigners argue that because Section 377 enshrines homophobia in India’s legal systems it also legitimises the continued repression of gay men and women in wider Indian society.

Last month they accused Britain of exporting homophobia during the 19th century when colonial administrators began enforcing Victorian laws and morals on their Indian subjects.

They want the British Government to apologise for the “immense suffering that has resulted from their imposition of Section 377.”

Gay rights activists argue that Hindu, Buddhist and early Muslim cultures on the subcontinent had a long history of tolerance towards same-sex relationships.