The Delhi High Court has criticised the Indian central government (the “centre”) for using inadequate evidence in its case to retain Section 377.

Section 377 was enacted in 1860 under the British Raj in line with the anti-sodomy laws in England at the time.

The Delhi High Court is considering a petition filed by gay rights activists asking for a colonial era law on “unnatural sex” to be overturned.

The centre is fighting to retain Section 377. Solicitor General PP Malhotra cited an article using pieces of a religious texts as part of the argument to keep the law.

The bench and Justice S Muralidhar asked for more scientific proof to back up the centre’s claim that gay sex was harmful to health and to society.

Chief Justice AP Shah, who heads a division bench in the case, said:

“This is just one-sided version of a religious body which cannot be relied upon. This is part of religious doctrine.

“Show us some scientific report which says that gay sex should be criminalised.”

The centre has previously argued during the case that repealing Section 377 would allow HIV/AIDS to spread, and that homosexuality is a reflection of a “perverse mind.”