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Reports on Day One of final Delhi HC hearing in the Sec.377 case May 21, 2008

Posted by nitinkarani in Indian Express, Section 377, Times of India.
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DNA (from the web site)

Centre divided on punishment of homosexuality: Delhi HC told

http://www.dnaindia.com/report.asp?newsid=1165375

PTI
Monday, May 19, 2008 21:12 IST

NEW DELHI: The Centre on Monday was divided on the issue of abolition of punishment for homosexuality with the Ministry of Home Affairs telling the Delhi High Court that it favours retention of the provision while the Health Ministry is against its enforcement.

“How would you reconcile the contradictory affidavit,” a Bench comprising Justices A K Sikri and J R Midha said after going through the affidavits filed by the two ministries adding “the government cannot shy away from the stand taken by it in the affidavit”.

Advocate Monica Garg, appearing for the Centre, found herself in a spot when the Bench pointed to the contradiction in the views of the ministries.

“I have earlier written to the government that I would not be able to represent both the ministries but I have not got a reply,” Garg submitted adding that for the time being she would represent the Ministry Of Home
Affairs which is in favour of penal provision against homosexuals.

The Home Ministry, in its affidavit, said that in Indian context the law was right and should continue as a deterrent for such kind of “immoral” acts.

On the other hand, the affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health, was against enforcement of Section 377 of IPC which has the provision of punishment upto life imprisonment for indulging in unnatural sex.

Enforcement of Section 377 can adversly contribute to pushing the persons suffering from HIV underground which would make such risky sexual practices go unnoticed, the affidavit filed by NACO said.

Pointing out the vulnerability of homosexuality towards HIV infection, NACO further contended that there were around 25 lakh male homosexuals and around eight per cent of them are infected with HIV while in normal people it is only one per cent.

“Men Having Sex with Men are mostly reluctant to reveal same sex behaviour due to fear of law enforcing agencies, pushing the infection underground and making it difficult to access them,” the affidavit by NACO said adding around 69 per cent MSM know about preventing infection but only 36 per cent
use condoms.

It further proposed softer approach towards these people as the penal provision of section 377 has forced MSM groups to have poor access to condom, healthcare services and safe sex information.

The court was hearing a petition filed by NGO Naz Foundation seeking its direction to declare Section 377 of IPC as “unconstitutional” as it violated a citizen’s fundamental right and promoted illegal sex.

“Section 377 demeans a gay man. It silences a gay man into accepting the discrimination against him. He will not come out to declare his orientation”, the NGO contended in its petition which has been taking up the cause of AIDS/HIV victims.

———————————–

The Indian Express (from the web site)

Centre divided on punishment of homosexuality, Delhi HC told

http://tinyurl.com/6eoayy

Agencies

Posted online: Monday , May 19, 2008 at 08:05:00
Updated: Monday , May 19, 2008 at 09:33:12

New Delhi, May 19: The Centre on Monday was divided on the issue of abolition of punishment for homosexuality with the Ministry of Home Affairs telling the Delhi High Court that it favours retention of the provision while the Health Ministry is against its enforcement.

“How would you reconcile the contradictory affidavit,” a Bench comprising Justices A K Sikri and J R Midha said after going through the affidavits filed by the two ministries adding “the government cannot shy away from the stand taken by it in the affidavit”.

Advocate Monica Garg, appearing for the Centre, found herself in a spot when the Bench pointed to the contradiction in the views of the ministries.

“I have earlier written to the government that I would not be able to represent both the ministries but I have not got a reply,” Garg submitted adding that for the time being she would represent the Ministry Of Home Affairs which is in favour of penal provision against homosexuals.

The Home Ministry, in its affidavit, said that in Indian context the law was right and should continue as a deterrent for such kind of “immoral” acts.

On the other hand, the affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health, was against enforcement of Section 377 of IPC which has the provision of punishment upto life imprisonment for indulging in unnatural sex.

Enforcement of Section 377 can adversly contribute to pushing the persons suffering from HIV underground which would make such risky sexual practices go unnoticed, the affidavit filed by NACO said.

—————————-

Times of India (from the Mumbai edition and the web site)

Delhi HC to take up PIL on gay rights

http://tinyurl.com/54b2t5

20 May 2008, 0259 hrs IST,Shibu Thomas,TNN

MUMBAI: In a tony neighbourhood in Andheri, Rahul, a 25-year-old IT professional, shares an apartment with Brian (27), who works at a multi-national bank. For the last two years, their landlord and neighbours know them as perfect roommates, but to friends and a few family members they are a gay couple.

In a country where homosexual acts are punishable with life imprisonment, few like Rahul and Brian manage to make a home for themselves. A public interest litigation being heard in Delhi HC this week seeking to decriminalise homosexuality is being watc-hed with bated breaths by the lesbian and gay community.

“Living with one’s partner is taken for granted by my straight friends, but I have to make sure who I tell about our relationship,” said Rahul, the more outspoken one who has also told his family about himself. Brian is still to decide what to tell his parents.

“The Constitution guarantees the right to privacy and right to health, but the law treats gay people as criminals whose rights can be abrogated,” said Lesley Esteves, a lesbian activist and spokesperson for Voices Against 377 a coalition of LGBT, women’s and human rights activists. Voices is one of the organisations that has filed an intervention application in the high court seeking a “reading down” of the law.

Section 377 says “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either up to 10 years or life”. Enacted in 1860, it was more stringent than anti-sodomy laws that existed in English law of the time.

The section says, “Penetration is sufficient to constitute the carnal intercourse necessary for the offence. It includes a whole range of offences from mutual masturbation, to fellatio and anal sex.”

The Law Commission in 2001 had recommended a repeal of Section 377, a move backed by the Union ministry of family and child welfare in 2006. The law, however, remains.

Gay activist and founder of NGO Humsafar Ashok Row Kavi explains that the PIL does not seek a repeal of Section 377. “The court has been urged to read down Section 377, so as to decriminalise homosexuality,” said Kavi, adding that more than legal repercussions, it is the social consequences that makes the law draconian.

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