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Petition in Delhi HC seeks to legalise homosexuality

The Delhi high court on Friday sought a reply from the Centre on a writ petition seeking the amendment of section 377 of the Indian Penal Code to legalise homosexuality between consenting adults.

Taking cognizance of a public interest petition, a division bench comprising Justices Devinder Gupta and S K Kaul issued notices to the Union government, the social welfare ministry, the Delhi government, Delhi's police commissioner and the National AIDS Council, asking them to file their replies by January 28.

The petition filed by the Naz Foundation Trust, which claims to work with homosexual men to prevent the spread of AIDS, said the provisions of section 377 violate a citizen's fundamental rights as defined in Articles 14, 15, 19(1)(a-d) and 21 of the Constitution.

Section 377 says that whoever voluntarily has sexual intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or a term that may extend to 10 years and a fine.

While Article 14 grants equality before the law and protection to all citizens, Article 15 protects them against any discrimination against the law and grants the freedom of leading a life of one's own choice.

Advocate Anand Grover, appearing for the petitioner, said the provisions of section 377 were impeding AIDS awareness among homosexuals.

The Naz Foundation also sought a permanent injunction restraining government agencies from taking action against consenting adults under section 377. But the court did not issue any orders on the matter and simply adjourned it after issuing the notices.

The foundation said that during its interaction with homosexuals regarding protection against AIDS, it came to the conclusion that fear of the law and prosecution under section 377 had a "damaging effect" on them and society.

With AIDS spreading fast, homosexuals are the most vulnerable group as their sexual relationships are neither recognised by "our society" nor have legal sanction, it said.

"The harassment and extortion of MSM [men who have sex with men] and sexual minorities constitutes a blatant abuse of their fundamental and human rights," the foundation said.

Stating that sexual relations between private, consenting adults come within the purview of "intimate associations protected from state intrusions under Article 21 of the Constitution", it said, "There is no compelling interest of the state to justify curtailment of such an important element of the right to life and liberty."

"Section 377 creates an arbitrary and unreasonable classification between natural and unnatural sexual acts and violates Article 14, which guarantees equality and protection before law," the foundation claimed.

Grover said a similar petition, filed by another person in 1994, was also pending before the court and could be heard together with the present one.

PTI

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