HC seeks clarification on gay issue

[Guest guest]

HC seeks clarification on gay issue

The Pioneer April 24, 2002

The Delhi High Court on Tuesday directed the Union Government, Ministry of

Social Welfare, Delhi Government, Delhi Police Commissioner and National AIDS

Council to file their replies by August 26, on a petition seeking legalisation

of homosexuality between consenting adults and consequent amendment to Section

377 of the Indian Penal Code (IPC), which makes such a relationship a criminal

offence.

On Tuesday, Additional Solicitor General Mukul Rohtagi sought more time on

behalf of the Union Government to file its reply. This was third time when the

Union Government sought more time to clear its stand on the issue.

Issuing notices to all respondents, a Division Bench comprising Justice Devendra

Gupta and Justice Shameet Mukerje a fixed August 26, the next date of hearing.

Union Government's counsel informed the Bench that he has received a letter from

the Ministry of Home Affairs which is examining the matter in this regard.

The Court's order came on a petition filed by an NGO Naz Foundation, asking the

Government be restrained from treating male homosexual relations as an offence

under Section 377 of the IPC.

The court also dismissed a petition filed by Joint Action Council, Kannur,

alleging the Bench has no jurisdiction to hear the matter.

Earlier, the court had clubbed a similar petition pending before it since 1994,

for hearing together with the petition by Naz Foundation.

Advocate Anand Grover, appearing for the NGO, said the provision of Section 377

was causing impediment in promotion of the AIDS awareness among gays as they

were not coming forward due to fear of the law.

The petitioner has sought direction to the government agencies from taking

action against consenting adults under Section 377 of the IPC but the court has

bot issued any direction to this effect.

The petitioner said during interaction with MSM and gay community regarding the

protection against AIDS, it came to the conclusion that the fear of law and

prosecution had a damaging effect on them and the society against the disease.

Since AIDS is spreading very fast, the gays were the most vulnerable group as

such sexual relationships were neither recognised by our society nor by law, the

petitioner said.

" The harassment of MSM and the sexuality minorities (including gay men and

lesbians) constitutes a blatant abuse on their fundamental and human rights, "

the petitioner contended.

The NGO, which claims to be working with the homosexuals, to prevent spread of

AIDS, said, the provisions of Section 377 of the IPC were not only ultra vires

of the fundamental rights as defined in Article 14, 15, 19(1)(a)(d) and 21 of

the Constitution but also were coming in the way of spreading awareness about

AIDS.

Section 377 says that whoever has voluntarily sex against the order of nature

with any man, woman or animal, shall be punished with imprisonment for life, or

with imprisonment of either description for a term which may extend to ten

years, besides, imposition of fine.

Article 14 gives the right of equality and protection of laws to all citizens,

Article 15 protects them against any discrimination against law. The article

also gives a citizen freedom of leading a life of his own choice.

Sexual relations between private consenting adults fell within the " intimate

associations and there is no compelling interest of the state to justify

curtailment of such an important element of right to life and liberty. " It said.

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Dr.Jagdish Harsh ( jharsh@... )

Director of Administration and Operations

François-Xavier Bagnoud (INDIA)( www.fxb.org )

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