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Ban on gays under review
- Delhi HC to decide on validity of law against homosexuality

Feb. 3: The Supreme Court today asked Delhi High Court to examine the constitutional validity of a law that makes homosexuality a criminal offence.

The high court had earlier turned down a PIL filed by the NGO Naz Foundation, which said Section 377 of the Indian Penal Code (IPC) violated the fundamental rights of homosexuals and came in the way of its anti-AIDS campaign. The court dismissed the PIL on technical grounds.

However, on appeal, a four-judge bench of the Supreme Court sent the case back to the high court asking it to consider the matter on merit and decide the question of law involved in the petition.

According to Section 377, any “unnatural sex”, including homosexuality, is a criminal offence.

The NGO, which runs an anti-AIDS campaign, contends that the provision discourages homosexuals from coming out in the open and hence necessary information cannot be provided to them.

The Centre had opposed the petition in the high court saying society is not ready for legalising homosexuality. But in the Supreme Court, additional solicitor-general Gopal Subramaniam, appearing for the government, agreed that the issue needs to be examined in view of the changed social scenario.

Homosexuality is gradually coming out of the closet, even finding a place in Hindi films.

My Brother Nikhil was about what being gay and suffering from AIDS in India means. The protagonist, played by Sanjay Suri, is a champion swimmer who discovers his illness and is turned out by his parents, too. But he is supported by his boyfriend and his own sister, played by Juhi Chawla,who are unapologetic, loving and caring.

If this was a serious film, Karan Johar’s blockbuster Kal Ho Na Ho was also a change from the routine trivialisation of the gay man. In the film, the characters played by Shahrukh Khan and Saif Ali Khan turn the old joke on its head. The script has an old woman servant at Saif’s place, who suffers from intense homophobia, repeatedly discovering Saif and Shahrukh in seemingly compromising positions. It, however, does not go any farther ' Shahrukh’s and Saif’s characters remain stolidly heterosexual.

In a way, this reflects the position in society, which is talking about homosexuality more than before but is not ready to accept it. The apex court’s decision could well ignite protests from the VHP, Bajrang Dal and their sister organisations in the Sangh parivar.

The conservative Sangh has been at the forefront of opposing any movement for gay and lesbian rights. The Bajrang Dal and VHP staged protests across the country against Fire and later Girlfriend, films on lesbian relationships.

Rashtra Prakash, general secretary of the VHP who is closely associated with Bajrang Dal activities in Delhi, said NGOs like Naz Foundation ought to be “banned”.

“What they are doing is totally wrong. We see it as an attack on Indian culture and value system. These people are influenced by free societies in the West but they forget that they live in India,” he said.

Prakash said he hoped the high court would take a “correct” decision. “Sometimes the court also takes a wrong decision. Their so-called progressive verdicts are sometimes completely opposite to what is considered right by the society,” he said.

“Look at what happened to Jessica Lall in Delhi. She was shot dead. You can’t expect good behaviour from people who are drunk. Why should women serve alcohol in bars. This is not progressive, this is anti-Indian.”

However, the RSS chose to be discreet. “We’ll analyse the court verdict when it comes. The SC has only asked the high court to consider the case. We would wait for the final decision,” said RSS spokesperson Ram Madhav.

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