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Ministries took contradictory stands

Staff Reporter

NEW DELHI: The Naz Foundation, which moved the court against the Section 377 provision, works among sex workers in Delhi to create awareness about AIDS.

It argued that Section 377 should apply only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

The Union Home Affairs and the Health and Family Welfare Ministries had taken contradictory stands on the petition during the hearing.

The Home Ministry had opposed it submitting that Section 377, inter alia, was a justified interference by public authorities in the interest of “public safety and protection of health and morals” while the Ministry of Health and Family Welfare supported it arguing that Section 377, by criminalising consensual sex between adults of the same sex, hampers HIV intervention efforts aimed at sexual minorities.

Though the Delhi government, the Delhi police and the Delhi State Aids Control Society were parties to the petition, they preferred not to file any counter affidavit or pleadings.

The High Court in 2004 dismissed the petition on the ground that there was no cause for action in favour of the petitioner and that such a petition could not be entertained to examine the academic challenge to the constitutionality of the legislation.

Thereafter, the petitioner had moved the Supreme Court. The Supreme Court set aside the High Court judgment observing that the matter did require consideration and was not of a nature which could have been dismissed on the ground that it was an academic challenge to the legislation. It had remitted the petition to the High Court.

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