Last edited: September 10, 2003

Centre Says Being Gay Will Remain a Crime, Its Reason: Our Society Doesn’t Tolerate It

Indian Express, September 8, 2003

By Kavita Chowdhury

New Delhi—The Central Government has informed the Delhi High Court that homosexuality cannot be legalised in India as the “Indian society is intolerant to the practice of homosexuality/lesbianism.”

Quoting the 42nd report of the Law Commission, it claims the society’s disapproval was “strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private.”

The Centre was replying to a petition challenging the constitutional validity of Section 377 of the Indian Penal Code. According to this, “whoever voluntarily has sex against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years.”

The Government claimed that Section 377 of IPC has been basically used to punish child sexual abuse and to complement lacunae in rape laws. It has rarely been used to punish homosexual behaviour.

Deleting this, the Centre said in its affidavit submitted to the court today, “can well open the flood gates of delinquent behaviour and be construed as providing unbridled licence for the same”.

The petition filed by New Delhi-based Naz Foundation, an NGO working for the welfare of HIV positive and AIDS patients, challenged the validity of this provision and urged that homosexuality be legalised. It argued that due to fear of police action, consenting adult males having sexual relations were not coming out thereby hampering medical intervention.

Replying to the petitioner’s allegations that Section 377 violated the right to equality (Article 14), right to freedom (Art 19) and right to personal liberty (Art 21), the Centre said “none of these rights were infringed” and that each of them were subject to reasonable restrictions. Ironically, the Centre also claimed that it was not for Naz to file the PIL. Only those “whose rights are directly affected by the law can raise the question of its constutionality,” it said.

The division bench of Chief Justice B C Patel and Justice AK Sikri fixed December 10 for further hearing after Naz asked for time to prepare a rejoinder to the government affidavit.

Citing examples of UK and the USA, where such sexual preferences are respected, the Centre has pointed out however that “it is not the universally accepted behaviour.”

The petition was filed way back in 2001 and the court had taken a serious view of the Union Governement’s inability to spell out its stand on homosexuality and asked the Attorney General to give his opinion. The court had observed that the issue could not be just brushed aside on the grounds of social morality.

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