PIL seeking validity for homosexuality dismissed

[Guest guest]

PIL seeking validity for homosexuality dismissed

The Delhi High Court today dismissed a public interest litigation petition

seeking legal validity for homosexuality. It sought repeal of Section 377 of the

Indian Penal Code (IPC) under which the practice of unnatural sex has been made

a criminal offence punishable with imprisonment up to 10 years.

Dismissing the petition by the Naaz Foundation, a voluntary organisation working

to create awareness about AIDS among sex workers here, a Division Bench

comprising Justice B.C. Patel and Justice B.D. Ahmed said since no cause of

action had arisen, the petition could not be filed merely to test the validity

of the law.

The Union Government had also opposed the petition submitting that if the

relevant Section was deleted, it would open the floodgates of delinquent

behaviour and be misconstrued as providing an unbridled licence for the same.

The organisation had sought striking down of the penal provision saying that it

violated Articles 14, 15 and 21 of the Constitution relating to Fundamental

Rights.

However, the Union Government said that the Section does not violate Article 14

as it only says that whoever voluntarily has carnal intercourse against the

order of the nature with any man, woman or animal shall be punished.

Since Section 377 was primarily used for punishing child sexual abuse and

complementing lacunae in rape laws, not mere homosexuality, it was not violative

of Article 15 of the Constitution, the Government said.

The Law Commission of India had also considered the issue of whether to retain

or repeal Section 377. It had observed that Indian society in general

disapproved of homosexuality and this was strong enough to justify treating it

as a criminal offence, even if the adults indulged in it in private.

While a government could not police morality in a civil society, the law had to

express and reflect public morality and concerns about harm to society at large.

If this was not observed, whatever little respect for law was left would

disappear, as the law would have lost its legitimacy, counsel for the Government

stated.

Source: The Hindu, September 3, 2004, Madurai.

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Yours in Global Concern

A. SANKAR

Executive Director

EMPOWER, 107J / 133E, puram

TUTICORIN-628 008, INDIA

E-mail: <ttn_empower@...>

[Guest guest]

Well, I am not surprised by the actions of the High Court who may only see this

application to be vexacious. What I find inexcusable is the DSACS and NACO did

not at least address the issue.

It is a clear and inescapable view that this legislation itself flies in the

face of good harm minimisation practice. Accordingly for a maximum beneficial

outcome a discussion paper should have been commissioned in both sectors charged

with harm minimisation outcomes to address the issues clearly and well away from

the issues of pompous morality that so often rears its ugly and damaging head

when a sexually transmissible disease threatens the fabric of society.

The principle beneficiaries of the repeal of this piece of criminalisation from

Westminster would of course be the valuable members of the Police forces of the

various States whose unsafe abuse of the legislation has already rendered so

many of themselves and their partners HIV positive.

My immediate reaction would be to serve a show cause notice on both statutory

bodies requiring a response from the perspective of the harm minimisation

strategies that have been regurgitated yet again by the IAC in Bangkok.

Only a full debate not only from DSACS but mirrored from every other SACS in

India may well provide the Delhi High Court with the legal (not moral) argument

that might give rise to a better legal outcomes. Courts at this level have been

doing a great job with HIV employment security issues so we should be able to

expect similar responses on sexual practices where they contribute to increases

in infectivity.

Geoffrey

E-mail: <gheaviside@...>