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Homosexuals move HC seeking `fundamental rights'
By Our Staff Reporter
NEW DELHI, DEC. 7. Ostracised by society, a group of gays, through a voluntary organisation working among them for prevention of AIDS, today moved the Delhi High Court seeking legal sanction for conjugations between two consenting adult homosexuals.
The Naz Foundation Trust, which claims to work among the men who cohabit with men, sought amendment to Section 377 of the Indian Penal Code which prohibits such a relationship declaring it an unnatural offence, and the sentence for it is between ten years to life imprisonment.
The IPC provision creates an arbitrary and unreasonable classification between natural and unnatural sexual behaviours and violates Article 14 of the Constitution guaranteeing equality before the law.
The Foundation also sought a permanent stay on police action against consenting adult homosexuals.
Refusing to grant a stay on action under the penal provision, a Division Bench, comprising Mr. Justice Devinder Gupta and Mr. Justice S.K. Kaul, issued notices to the Union Government, the Union Ministry of Social Welfare, the Delhi Government, the Delhi Police Commissioner and the National AIDS Council.
The petitioner submitted that the IPC provision was violative of the fundamental rights of equality before law, protection of laws to all citizens and freedom to lead a life of one's choice. It said the IPC provision was a hurdle in the AIDS awareness campaign run by it.
The petitioner further said that it found during its interaction with the gays that the fear of prosecution had adverse effects on them. Gays are the most vulnerable group for AIDS transmission as they had neither social nor legal sanction to their sexual demeanours.
The harassment of the homosexuals and the lesbians at the hands of society and police were an attack on their fundamental and human rights, the petitioner said. Couching the cohabitation between consenting adult homosexuals as within the ambit of ``intimate associations protected from state intrusion under Article 21 of the Constitution'', the petitioner said that there was no compelling interest for the state to justify curtailment of such a vital element of right to life and liberty.
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