The government of India has been challenged in court for calling homosexuality a disease.

They are arguing for the retention of Section 377, the law that criminalises same-sex acts.

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 it to be overturned.

Yesterday additional solicitor general PP Malhotra told the High Court that homosexuality is a disease.

“Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour is legalised in the country,” he said.

“AIDS is already spreading in the country and if gay sex is legalised then people on the street would start indulging in such practices saying that the High Court has given approval for it.

“Legalising it would send a wrong message to our youth.”

“Show us one report which says that it is a disease,” Chief Justice AP Shah responded.

“A WHO (World Health Organisation) paper says that it is not a disease but you are describing it as a disease.

“It is an accepted fact that it is a main vehicle that causes (AIDS) disease but it is not a disease itself.”

Last week the Chief Justice rejected government attempts to introduce religious texts as evidence.

“This is just one-sided version of a religious body which cannot be relied upon,” he said.

“This is part of religious doctrine.

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

Prime Minister Manmohan Singh has requested that Home Minister Shivraj Patil and Health Minister Anbumani Ramadoss meet privately to discuss the issue before the court.

While the health ministry is fighting to repeal the law, on the grounds that decriminalisation will help stop the spread of HIV, the home ministry maintains that gay sex is the product of “a perverse mind.”

Science and Technology Minister Kapil Sibal said that the cabinet had deferred a decision on the matter until after the court case has been concluded.

India has the greatest number of HIV/AIDS patients in the world, an estimated 2.5 million.

Mr Ramadoss called for the repeal of Section 377 in August at the 17th International Conference on AIDS in Mexico City.

The law punishes anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal” by imprisonment and criminalises a whole range of sexual acts from mutual masturbation, to fellatio and anal sex.