Last edited: November 05, 2004

Homosexuality is Punishable: HC

The 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 punishable offence.

“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 stated.

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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