The Telegraph
Since 1st March, 1999
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HC asks Centre to clarify stand on homosexuals

New Delhi, Jan. 15: When legal recognition to homosexuals and lesbians is on the increase worldwide, and several countries have even legalised marriage between persons of the same sex, Delhi High Court wants the Centre to take a stand on the issue.

A bench of Chief Justice Devinder Gupta and Justice B.D. Ahmed, in a proceeding order, today asked the Centre to submit an affidavit clarifying its stand on whether homosexuality should be legalised and the current legal provision making it a penal offence should be done away with.

The affidavit must be filed within four weeks.

The bench said it was the “final opportunity” for the Centre to clarify its stand, and emphasised that “despite a number of adjournments in the case, the Centre has not filed an affidavit”.

“In view of a number of petitions questioning the very provision, Section 377 of the Indian Penal Code, a notice was issued to the Attorney-General for his views”, the bench observed, but no affidavit has been filed so far.

Section 377 provides for punishment for “unnatural offences” and imposes a 10-year jail term and a fine on the person who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.

The court’s direction to the Centre was given on a public interest litigation filed by Naz Foundation, a non-government organisation.

The foundation, that works among AIDS patients, is seeking an amendment to Section 377 to legalise homosexuality on the ground that fear of police action had stopped consenting adult males having sexual relations between themselves from coming forward to disclose it, though they were prone to HIV infection.

The bench took serious note of the “Centre’s lethargy” and its lapse in filing an affidavit.

The court said the Centre could not seek any more adjournments on the ground that the Attorney-General’s opinion was yet to be received.

The bench, observing that the opinion of the Attorney-General was not necessary, said he could have straightaway appeared in court to argue the case.

An offence of homosexuality under Section 377 is considered committed when “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section”.

However, in a case where a highly educated person committed this offence, the Supreme Court let him off with a sentence of two months’ imprisonment, “having regard to his loss of service and other consequences to his career” — 1975, Cr.L.J. 30 (SC).

In another case, the apex court reduced the sentence to six months’ imprisonment from 10 years because the accused “did not use force” on the boy while committing the offence of sodomy.

In another case involving a Himachal Pradesh truck driver — who was twice found committing the offence in his truck — a sentence of one year’s imprisonment and a fine of Rs 500 were imposed.

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