Last edited: September 06, 2004

High Court Rejects Plea to Make Homosexuality Legal

The Times of India, September 3, 2004

NEW DELHI—The high court on Thursday dismissed a PIL that had challenged the constitutional validity of Article 377 of the IPC which makes homosexuality a punishable offence. Chief Justice B C Patel and Justice B D Ahmed dismissed the three-year-old petition, saying that as there was no cause of action, a petition could not be filed just to test the validity of the legislation.

Last year the Centre had filed its reply. It had opposed saying homosexuality cannot be legalised in India as the society disapproves of such behaviour.

It mentioned in its affidavit that deletion of the section would open the “floodgates of delinquent behaviour” and “would be construed as providing unbridled license for the same”.

Citing the Law Commission’s 42nd report, the Centre claimed that since society did not approve of it, it was a strong enough reason to justify it as a criminal offence. “The purpose of section 377 is to provide a healthy environment in society by criminalising unnatural sexual activities against the order of nature,” the Centre had said.

It, however, added that the section so far has been invoked against only those charged with child abuse. The section has rarely been used to punish homosexual behaviour.

Since society and law do not run separately, the government claimed, the former reflects the perception of society.

“The public, notably in UK and US have shown tolerance of new sexual behaviour, but it is not universally accepted behaviour,” the Centre had stated.

The petition had been filed by NGO Naz Foundation. It had challenged the constitutional validity of the section. It had sought the court’s direction to declare Section 377 unconstitutional.

The NGO had sought to legalise homosexuality on grounds that due to fear of police action, consenting adult males having sexual relations were not coming forward to disclose their problems, even though they were more prone to HIV infection.

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