Centre Says Being Gay Will Remain a Crime, Its Reason: Our Society Doesn’t
Tolerate It
Indian
Express, September 8, 2003
Email: ie@expressindia.com
http://www.indianexpress.com/full_story.php?content_id=31224
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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