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Keep homosexuality in crime list: Centre

By Our Staff Reporter

NEW DELHI SEPT. 9. The Union Government has urged the Delhi High Court to reject a public interest litigation seeking setting aside of the penal provision under which the practice of homosexuality has been made a criminal offence and punishable.

In an affidavit submitted to a Division Bench of the Court comprising Justice B.C. Patel and Justice A.K. Sikri, Aman Lekhi, counsel for the Centre, said that if Section 377 of the Indian Penal Code was deleted, it would open up floodgates of delinquent behaviour and be misconstrued as providing an unbridled licence for the same.

The public interest litigation has been filed by Naaz Foundation, a voluntary organisation working for creation of awareness about AIDS among sex workers in the Capital.

The organisation has sought striking down of the penal provision saying that it was violative of Articles 14, 15 and 21 of the Constitution.

However, the affidavit said that the Section was not violative of Article 14 relating to Fundamental Rights as the provision only says that whoever voluntarily has carnal intercourse against the order of the nature with any man, woman or animal shall be punished.

It said that Section 377 of IPC had generally been employed in cases of allegation of sexual abuse of child and for complementing lacunae in rape laws.

Since Section 377 was primarily used for punishing child sexual abuse and complementing lacunae in rape laws, not mere homosexuality, so it was not violative of Article 15 of the Constitution, the affidavit said.

The Law Commission of India also considered the issue whether or not to retain Section 377 and observed that Indian society by and large disapproved of homosexuality and the disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulged in it in private, the affidavit said.

While a government could not police morality, in a civil society the law had to express and reflect public morality and concerns about harm to society at large. If this was not observed, whatever little respect of law was left would disappear, as the law would have lost its legitimacy, the affidavit said.

The matter is scheduled to come up for hearing on December 10.

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