Date:26/09/2008 URL: http://www.thehindu.com/2008/09/26/stories/2008092655680600.htm

New Delhi

Section 377 violates right to equality: NGOs

Staff Reporter

NEW DELHI: A group of NGOS supporting the plea for decriminalisation of homosexuality by the country’s gays on Thursday argued before the Delhi High Court that the State could not continue to deny to them the fundamental right to equality by continuing to treat homosexuality as a penal offence.

Appearing for them, Shyam Diwan submitted that when the Constitution had granted every citizen the right to equality, the Executive could not encroach upon it on the ground that decriminalisation of homosexuality would not be morally right for society.

He argued that the Constitution does not permit discrimination against citizens on grounds of sex, religion, caste and community but homosexuals were being discriminated against due to their preferred sexuality.

A Division Bench of the Court comprising Justices A.P. Shah and S. Muralidhar has been hearing a petition by an NGO, Naaz Foundation, seeking legal sanction for homosexuality through repeal of Section 377 of the Indian Penal Code whereby the practice of unnatural sex has been made a criminal offence and punishable.

The Union is in a fix on how to respond to the petition as its two Ministries — the Home Ministry and the Health and Family Welfare Ministry — have different opinions on the issue.

The Home Ministry is for retaining the penal provision for homosexual acts while the Health and Family Welfare Ministry is against its enforcement in cases involving consenting adults.

The Bench last week had directed the Centre to make its submission on Thursday but it did not get the opportunity as Mr. Diwan continued his submission all through the day. The Centre is likely to make its submission on Friday.

The Union Home Ministry’s argument is that if the relevant Section is deleted, it would open the floodgates for delinquent behaviour and be misconstrued as providing an unbridled licence for the same.

The petitioner has sought abolition of the provision saying that it violates Articles 14, 15 and 21 of the Constitution.