Homosexuality is Punishable: HC
Times of India, November 3, 2004
NEW DELHI—The Delhi High Court on
Wednesday dismissed a petition seeking review of its order rejecting a PIL
challenging the constitutional validity of Section 377 of the Indian Penal
Code which makes all kinds of unnatural sex, including homosexuality, a
“The review petition cannot be entertained”, a
division bench of Chief Justice B C Patel and Justice B D Ahmed said
dismissing the petition filed by Naz Foundation.
Earlier, senior counsel Anil B Divan pointed out on
behalf of the NGO that the court had errred in dismissing the petition as it
failed to take into account recent judgements of the Supreme Court on the
question of locus standi.
Divan also submitted that the law on homosexuality has
drastically changed in various parts of the world, including the US and the
European Union countries.
“Whatever is available in the US cannot be made
available in India also”, the court observed.
The Bench had on September 2 last dismissed the petition
filed by Naz Foundation on the ground that there was no cause of action for
the petitioner to approach the Court.
“A petition cannot be filed just for testing the
validity of a legislation,” the Bench had said.
The NGO, which works for AIDS awareness, had filed the
PIL in 2001, seeking to declare section 377, IPC as violative of right to
equality (Article 14), right to freedom (Article 19) and right to life and
liberty (Article 21) of the Constitution.
The Centre had opposed the petition saying homosexuality
cannot be legalised in India as the society disapproves of such behaviour.
“Law does not run separately from the society. It only
reflects the perception of the society. Public tolerance of different
activities change and the legal categories get influenced by these changes.
“The public, notably in UK and US have shown tolerance
of new sexual behaviour or sexual preference, but it is not universally
accepted behaviour. Objectively, speaking, there is no such tolerance to the
practice of homosexuality/ lesbianism in Indian society,” the Centre had
However, the NGO felt that the Court should have taken
into account the grave threat to public health by proliferation of HIV as
Section 377 was leading to marginalisation of homosexual minority and
preventing them from coming in the open for help.
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