Last edited: December 05, 2004

India Court Petitioned on Sodomy Law

Datalounge, September 10, 2003

NEW DELHI—India’s national government has told justices siting on the Delhi High Court that criminal sodomy laws in the Indian Penal Code cannot be repealed because “Indian society is intolerant to the practice of homosexuality/lesbianism.” The government told the High Court that legalizing gay sex would “open the floodgates of delinquent behavior and be construed as providing unbridled license for the same.”

Quoting from the 42nd report of the Law Commission, the government told the court “Indian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private.”

The government also attacked the Naz Foundation, which brought the suit, saying that as it is an issue that only a small minority (gay men and lesbians) it was not worth the High Court’s consideration. “No one except those whose rights are directly affected by the law can raise the question of its constutionality,” said the government.

The government’s blistering dismissal was issued in reply to a petition challenging the constitutional validity of Section 377 of the Indian Penal Code. According to the law,”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.”

Echoing arguments made in favor of sodomy laws in the United States, Delhi claimed that Section 377 of IPC has been basically used to punish child sexual abuse. It has rarely been used to punish sexual behavior between consenting adults.

The Naz Foundation petition seeking the repeal of Section 377 was filed in 2001. Justices have since been waiting to hear the government’s stand and noted with some irritation that wait had been in vain until now. The court said the issue could not be shunted aside on the grounds of social morality.

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