High Court Rejects Plea to Make Homosexuality Legal
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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