New Delhi: The Delhi high court on Friday moved a step closer to passing verdict on a seven-year-old petition that seeks to keep homosexuality out of the ambit of a law that makes “unnatural” sex a criminal offence.
A bench headed by the chief justice of the Delhi high court, A.P. Shah, completed hearing arguments in the case and reserved its judgment, on Friday. It asked the petitioners and the respondents to file transcripts of their oral arguments by 17 November.
Its verdict will be the first delivered by an Indian court on a 19th century law that treats homosexual activity as a criminal offence. Since the 1980s, courts in countries such as the UK, Australia, South Africa and the US have struck down similar laws that made same-sex activity a crime.
The petition was filed by New Delhi-based non-profit group Naz Foundation in 2001, seeking a reading down of section 377 of the Indian Penal Code (IPC) of 1860 that criminalizes “private consensual sex between adults” of the same sex.
Section 377 of the IPC, 1860, says an individual who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal” shall be imprisoned for life or for a term exceeding 10 years and be liable to pay a fine.
Since section 377 is also applicable to cases of child sexual abuse and sexual activity without mutual consent, the petitioners have asked the court to redraw the law to the extent that it decriminalizes same-sex activity.
Naz Foundation has been working on issues related to HIV, AIDS and sexual health since 1994. Its main argument was that efforts to curb the spread of HIV and AIDS are impeded by the law, as it pushes homosexual activity, one of the main causes of the spread of HIV and AIDS, underground.
Voices Against 377, another non-profit group fighting for gay rights, was also made a respondent after it sought the court’s permission to intervene in this case in support of Naz Foundation.
During the course of the proceedings, the Union health ministry and the ministry of home affairs, which are respondents to the petition, were divided, with the health ministry’s affidavit supporting the petitioners and the home ministry opposing decriminalization of same-sex activity.
The National AIDS Control Organisation that functions under the health ministry, told the court through an affidavit filed in July 2006 that section 377 of the IPC “can adversely contribute to pushing the infection (HIV/AIDS) underground”, besides making “risky sexual practices go unnoticed and unaddressed”.
On its part, the Union government, represented by additional solicitor general P.P. Malhotra, had rebutted Naz Foundation’s argument that section 377 is violative of homosexuals’ right to privacy by contending that the right could be curtailed in the interest of public morality and decency. Malhotra argued that while section 377 has rarely been used to prosecute people for same-sex activity, it acts as a deterrent to homosexual conduct, which he said was a cause for the spread of HIV and AIDS in the country. In October he had told the court, “Allowing MSM (men having sex with men) is nothing but spreading AIDS.”
“It was right for those in the LGBT (lesbian, gay, bisexual and transgender) rights movement to have reposed faith in the judiciary instead of asking the political class for change,” said New Delhi-based gay rights activist and lawyer Aditya Bondyopadhyay.
“The reaction of the court so far has been positive, non-prejudiced and scientific while the government has taken an unscientific, moralistic and homophobic view,” added Bondyopadhyay.