Last edited: April 18, 2005

SC Notice on Homosexuals

The Telegraph, April 2, 2005
Calcutta, India

By Our Legal Correspondent

NEW DELHI (APRIL 1)—The Supreme Court today issued a notice to the Centre on a petition seeking to legalise homosexuality, which could also pave the way for recognition of homosexual marriages.

A division bench of Justices Y.K. Sabharwal and P.P. Naolekar issued the notice to the Centre asking it why Section 377 of the Indian Penal Code should not be amended to accord legal status to homosexuals or whether the provision should be scrapped from the statute book.

This section defines “unnatural offences” relating to sex and provides 10 years’ jail term to those who have “intercourse against the order of the nature”, including “carnal intercourse” with “any man, woman or animal”. The provision also imposes a fine.

Delhi High Court had on September 2, 2004, rejected a similar petition by a non-government organisation, the Naz Foundation, which has now moved the apex court.

A Kerala-based body, the Joint Action Council Kannur (JACK), had opposed giving legal status to homosexuals, especially in the wake of the “AIDS danger”, and on the grounds that it was against the “order of nature”.

The high court had pointed out that the Naz Foundation as a body was not affected by the law. “No one who is not directly affected by a law can raise a question of the constitutionality of that law,” it said.

The Union ministries of health, social welfare and home, the National AIDS Control Organisation and the Delhi State AIDS Control Society have also opposed the petition.

A counsel for JACK, Ravi Shankar Kumar, had argued that health being a subject of public policy of the government, the Centre and states were empowered under the Constitution to take preventive methods against AIDS and any practice, including homosexuality, having the potential to spread the virus.

The high court had, however, declined to comment on the merit of the case. “This court does not express any opinion when nobody is really aggrieved and does not examine merely academically” the issue of granting legal status to homosexuals.

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